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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015-2016
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Migration Amendment (Free the
Children) Bill 2016
No. , 2016
(Senator Hanson-Young)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2016
Migration Amendment (Free the Children) Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Objects ............................................................................................... 2
4
Schedules ........................................................................................... 3
Schedule 1--Amendments
4
Migration Act 1958
4
No. , 2016
Migration Amendment (Free the Children) Bill 2016
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 may be cited as the Migration Amendment (Free the
5
Children) Act 2016.
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 (Free the Children) Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day 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 Objects
7
The objects of this Act are:
8
(a) to provide that children detained under the Migration Act
9
1958 must not be held in immigration detention facilities but
10
instead be placed, along with their immediate family
11
members or guardians, in community residential facilities;
12
and
13
(b) to uphold Australia's international obligations under the
14
Convention on the Rights of the Child done at New York on
15
20 November 1989, particularly as they relate to:
16
(i) the primacy of the consideration of the child's best
17
interests (Article 3); and
18
(ii) the principle that children must only be detained as a
19
measure of last resort and for the shortest appropriate
20
time (Article 37).
21
Note:
In 2016, the Convention on the Rights of the Child could be viewed in
22
the Australian Treaties Library on the AustLII website
23
24
No. , 2016
Migration Amendment (Free the Children) Bill 2016
3
4 Schedules
1
Legislation that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Schedule 1 Amendments
4
Migration Amendment (Free the Children) Bill 2016
No. , 2016
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Section 4AA
4
Repeal the section, substitute:
5
4AA Principles protecting the rights of minors under this Act
6
(1) The principles set out in this section, drawn from Article 37 of the
7
Convention on the Rights of the Child, must in every relevant case
8
be applied by each person exercising a power or performing a
9
function under this Act.
10
Note:
In 2016, the Convention on the Rights of the Child could be viewed in
11
the Australian Treaties Library on the AustLII website
12
13
(2) No minor is to be deprived of his or her liberty unlawfully or
14
arbitrarily. The arrest, detention or imprisonment of a minor must
15
be in conformity with the law and must only be used as a measure
16
of last resort and for the shortest appropriate period of time.
17
(3) Every minor deprived of liberty must be treated with humanity and
18
respect for the inherent dignity of the human person, and in a
19
manner which takes into account the needs of persons of his or her
20
age.
21
(4) Every minor deprived of his or her liberty has the right to prompt
22
access to legal and other appropriate assistance, as well as the right
23
to challenge the legality of the deprivation of his or her liberty
24
before a court or other competent, independent and impartial
25
authority, and to a prompt decision on any such action.
26
2 Subsection 5(1)
27
Insert:
28
Convention on the Rights of the Child means the Convention on
29
the Rights of the Child done at New York on 20 November 1989.
30
Note:
In 2016, the Convention on the Rights of the Child could be viewed in
31
the Australian Treaties Library on the AustLII website
32
33
Amendments Schedule 1
No. , 2016
Migration Amendment (Free the Children) Bill 2016
5
3 Subsection 5(1) (definition of residence determination)
1
Omit "subsection 197AB(1)", substitute "subsections 197AAA(1), (2),
2
(3) and 197AB(1)".
3
4 After section 197AA
4
Insert:
5
197AAA Minister must determine that minor is to reside at a
6
specified place rather than being held in detention facility
7
Residence determination for minor
8
(1) If a person to whom this Subdivision applies is identified as a
9
minor, the Minister must:
10
(a) make a determination (a residence determination) to the
11
effect that the person is to reside at a specified place, instead
12
of being detained at a place covered by the definition of
13
immigration detention in subsection 5(1); and
14
(b) do so as soon as practicable, but in any case within 30 days,
15
after the person is identified as a minor.
16
Residence determination for member of minor's family unit
17
(2) If:
18
(a) a determination under subsection (1) is in force requiring a
19
minor to reside at a specified place; and
20
(b) a person to whom this Subdivision applies is a member of the
21
family unit of the minor;
22
the Minister must, as soon as practicable, make a determination (a
23
residence determination) to the effect that the person is to reside
24
with the minor at the specified place, instead of being detained at a
25
place covered by the definition of immigration detention in
26
subsection 5(1).
27
Residence determination for minor's guardian or carer
28
(3) If:
29
(a) a determination under subsection (1) is in force requiring a
30
minor to reside at a specified place; and
31
Schedule 1 Amendments
6
Migration Amendment (Free the Children) Bill 2016
No. , 2016
(b) a person to whom this Subdivision applies has not been
1
identified as a member of the family unity of the minor; and
2
(c) the minor is, or has been, in the care of another person to
3
whom this Subdivision applies;
4
the Minister must, as soon as practicable, make a determination (a
5
residence determination) to the effect that the other person is to
6
reside with the minor at the specified place, instead of being
7
detained at a place covered by the definition of immigration
8
detention in subsection 5(1).
9
Minister must have regard to matters of public interest
10
(4) When making a residence determination under subsection (1), (2)
11
or (3) the Minister must have regard to the public interest.
12
Minister must not make a residence determination in certain
13
circumstances
14
(5) Despite subsections (1), (2) and (3), the Minister must not make a
15
residence determination under any of those subsections that a
16
person reside at a specified place unless the Minister is satisfied, on
17
reasonable grounds, that the living conditions at that place are of a
18
higher standard than a place covered by the definition of
19
immigration detention in subsection 5(1) where the person would
20
otherwise be detained.
21
Minister may refuse to make determination in certain
22
circumstances
23
(6) Despite subsections (1), (2) and (3), the Minister may refuse to
24
make a determination under one or more of those subsections if:
25
(a) the Minister is satisfied that it is in the best interests of the
26
minor to do so; or
27
(b) the Minister is satisfied that it is in the public interest to do
28
so; or
29
(c) if subsection (2) applies--both:
30
(i) the Minister has been given an adverse security
31
assessment in respect of a member of the family unit of
32
the minor mentioned in paragraph (2)(b) by the
33
Organisation; and
34
Amendments Schedule 1
No. , 2016
Migration Amendment (Free the Children) Bill 2016
7
(ii) the family unit notifies the Minister that the family unit
1
does not want to be separated; or
2
(d) if subsection (3) applies--both:
3
(i) the Minister has been given an adverse security
4
assessment in respect of the guardian mentioned in
5
paragraph (3)(c) by the Organisation; and
6
(ii) the guardian notifies the Minister that the guardian and
7
minor do not want to be separated.
8
Residence determination must specify names and conditions
9
(7) A residence determination must:
10
(a) specify the person or persons covered by the determination
11
by name, not by description of a class of persons; and
12
(b) specify the conditions to be complied with by the person or
13
persons covered by the determination.
14
Residence determination must be in writing
15
(8) A residence determination under subsection (1), (2) or (3) must be
16
made by notice in writing to the person or persons covered by the
17
determination.
18
Regulations
19
(9) Regulations made for the purposes of this section must prescribe:
20
(a) a method for a person to whom this Subdivision applies to
21
apply for recognition of:
22
(i) his or her relationship to a minor for the purposes of
23
subsection (2); or
24
(ii) his or her care of a minor for the purposes of
25
subsection (3); and
26
(b) that the application must be determined within 30 days of the
27
application being made.
28
Review
29
(10) Application may be made to the Administrative Appeals Tribunal
30
for review of a decision under this section.
31
Schedule 1 Amendments
8
Migration Amendment (Free the Children) Bill 2016
No. , 2016
Definitions
1
(11) In this section:
2
adverse security assessment has the same meaning as in Part IV of
3
the Australian Security Intelligence Organisation Act 1979.
4
Organisation means the Australian Security Intelligence
5
Organisation.
6
5 Subsection 197AD(2)
7
Omit "subsections 197AB(1) and (2)", insert "subsections 197AAA(1),
8
(2) and (3) and 197AB(1) and (2)".
9
6 At the end of section 197AD
10
Add:
11
(4) Application may be made to the Administrative Appeals Tribunal
12
for review of a decision under this section.
13
7 Section 197AF
14
Repeal the section, substitute:
15
197AF Power to make etc. residence determination
16
Who can make residence determinations
17
(1) The power to make a residence determination under
18
subsection 197AAA(1), (2) or (3) may only be exercised by:
19
(a) the Minister personally; or
20
(b) the Secretary; or
21
(c) an authorised officer who is an SES employee, an acting SES
22
employee, or equivalent, in the Department.
23
(2) The power to make a residence determination under
24
subsection 197AB(1) may only be exercised by the Minister
25
personally.
26
Who can vary or revoke residence determinations
27
(3) The power to vary or revoke a residence determination made under
28
subsection 197AAA(1), (2) or (3) may only be exercised by:
29
Amendments Schedule 1
No. , 2016
Migration Amendment (Free the Children) Bill 2016
9
(a) the Minister personally; or
1
(b) the Secretary.
2
(4) The power to vary or revoke a residence determination made under
3
subsection 197AB(1) may only be exercised by the Minister
4
personally.
5
8 Section 198AB
6
Repeal the section, substitute:
7
198AB Regional processing country
8
(1) The Minister may, by legislative instrument, designate that a
9
country is a regional processing country.
10
(2) A legislative instrument under subsection (1):
11
(a) may designate only one country; and
12
(b) must not provide that the designation ceases to have effect.
13
(3) Despite subsection 12(1) of the Legislative Instruments Act 2003, a
14
legislative instrument under subsection (1) of this section
15
commences at the earlier of the following times:
16
(a) immediately after both Houses of the Parliament have passed
17
a resolution approving the designation;
18
(b) immediately after both of the following apply:
19
(i) a copy of the designation has been laid before each
20
House of the Parliament under section 198AC;
21
(ii) 5 sitting days of each House have passed since the copy
22
was laid before that House without it passing a
23
resolution disapproving the designation.
24
(4) The Minister must not designate a country under subsection (1)
25
unless:
26
(a) the Minister thinks that it is in the national interest to
27
designate the country to be a regional processing country;
28
and
29
(b) the Minister is satisfied that the country complies with
30
relevant international laws, meets relevant human rights
31
standards and is a safe and appropriate place for minors to
32
reside;
33
Schedule 1 Amendments
10
Migration Amendment (Free the Children) Bill 2016
No. , 2016
(c) the Minister is satisfied that the country will, as soon as
1
practicable, release any detained person taken to the country
2
under section 198AD who is subsequently identified as a
3
minor.
4
(5) In considering the national interest for the purposes of
5
paragraph (4)(a), the Minister:
6
(a) must have regard to whether or not the country has given
7
Australia any assurances to the effect that:
8
(i) the country will not expel or return a person taken to the
9
country under section 198AD to another country where
10
his or her life or freedom would be threatened on
11
account of his or her race, religion, nationality,
12
membership of a particular social group or political
13
opinion; and
14
(ii) the country will make an assessment, or permit an
15
assessment to be made, of whether or not a person taken
16
to the country under that section is covered by the
17
definition of refugee in Article 1A of the Refugees
18
Convention as amended by the Refugees Protocol; and
19
(b) may have regard to any other matter which, in the opinion of
20
the Minister, relates to the national interest.
21
(6) For the purposes of paragraph (4)(c), the Minister must have regard
22
to whether or not the country has given Australia assurances to the
23
effect that, if:
24
(a) a person is taken to the country under section 198AD; and
25
(b) the person is detained in that country; and
26
(c) the person is subsequently identified as a minor;
27
the country will take all reasonable steps to release the person from
28
detention as soon as practicable.
29
(7) The assurances referred to in paragraph (5)(a) or subsection (6)
30
need not be legally binding.
31
(8) The power under subsection (1) may only be exercised by the
32
Minister personally.
33
(9) If:
34
(a) the Minister designates a country under subsection (1); and
35
Amendments Schedule 1
No. , 2016
Migration Amendment (Free the Children) Bill 2016
11
(b) the Minister becomes aware that one or more minors have
1
been taken to the country under section 198AD and detained;
2
and
3
(c) the country has not taken all reasonable steps to release the
4
minors from detention as soon as practicable;
5
the Minister must, by legislative instrument, revoke the
6
designation.
7
(10) If the Minister designates a country under subsection (1), the
8
Minister may, by legislative instrument, revoke the designation.
9
(11) The rules of natural justice do not apply to the exercise of the
10
power under subsection (1) or (10).
11
(12) In this section, country includes:
12
(a) a colony, overseas territory or protectorate of a foreign
13
country; and
14
(b) an overseas territory for the international relations of which a
15
foreign country is responsible.
16
9 Paragraph 198AC(2)(b)
17
Omit "paragraph 198AB(3)(a)", substitute "paragraph 198AB(5)(a)".
18
10 After paragraph 198AC(2)(b)
19
Insert:
20
(ba) a statement of the Minister's reasons for being satisfied that
21
the country will, as soon as practicable, release any detained
22
person taken to the country under section 198AD who is
23
subsequently identified as a minor, referring in particular to
24
any assurances of a kind referred to in subsection 198AB(6);
25
and
26
11 Subsection 198AD(1)
27
Omit "sections 198AE", substitute "sections 198ADA, 198AE".
28
12 After section 198AD
29
Insert:
30
Schedule 1 Amendments
12
Migration Amendment (Free the Children) Bill 2016
No. , 2016
198ADA Minors and their families or guardians not to be taken to
1
regional processing country
2
Section 198AD does not apply to an unauthorised maritime arrival
3
who:
4
(a) is identified as a minor; or
5
(b) if another unauthorised maritime arrival is identified as a
6
member of the family unit, or the guardian, of the minor--
7
that other unauthorised maritime arrival; or
8
(c) if another unauthorised maritime arrival is identified as a
9
guardian of the minor--that other unauthorised maritime
10
arrival; or
11
13 Subsection 198AH(1)
12
Omit sections 198AE", substitute "sections 198ADA, 198AE".
13
14 Application
--section 197AAA of the Migration Act 1958
14
(1)
This item applies if:
15
(a) a person is in detention under section 189 of the Migration
16
Act on or after the commencement of this item; and
17
(b) the person is a person to whom Subdivision B of Division 7
18
of Part 2 of that Act applies; and
19
(c) before the commencement of this item the person was
20
identified as a minor.
21
Residence determination for minor
22
(2)
The Minister must, as soon as practicable, but in any case within 14
23
days of commencement make a determination under
24
subsection 197AAA(1) of the Migration Act 1958, as inserted by this
25
Part, in relation to the minor.
26
Residence determination for member of minor's family unit
27
(3)
If:
28
(a) the Minister makes a determination in accordance with
29
subitem (2) in relation to the minor; and
30
(b) another person to whom Subdivision B of Division 7 of
31
Part 2 of the Migration Act 1958 applies is a member of the
32
family unit of the minor;
33
Amendments Schedule 1
No. , 2016
Migration Amendment (Free the Children) Bill 2016
13
the Minister must make a determination under subsection 197AAA(2)
1
of that Act in relation to the other person as soon as practicable, but in
2
any case within 14 days of making the determination in accordance with
3
subitem (2).
4
Residence determination for minor's carer or guardian
5
(4)
If:
6
(a) the Minister makes a determination in accordance with
7
subitem (2) in relation to the minor; and
8
(b) another person to whom Subdivision B of Division 7 of
9
Part 2 of the Migration Act 1958 applies has not been
10
identified as a member of the family unit of the minor; and
11
(c) the minor, at commencement, is, or has been, in the care of
12
another person (a guardian) to whom that Subdivision
13
applies;
14
the Minister must make a determination under subsection 197AAA(3)
15
in relation to the guardian as soon as practicable, but in any case within
16
14 days of making the determination in accordance with subitem (2).
17
15 Application
--section 198AB of the Migration Act 1958
18
To avoid doubt, if:
19
(a) before the commencement of this item a country had been
20
designated as a regional processing country under
21
subsection 198AB(1) of the Migration Act 1958; and
22
(b) immediately before the commencement of this item that
23
designation was in effect;
24
then, immediately upon the commencement of this item, the designation
25
ceases to be in effect.
26