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This is a Bill, not an Act. For current law, see the Acts databases.
2004-2005-2006-2007
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Bill 2007
No. , 2007
(Senator Bartlett)
A Bill for an Act to amend the Migration Act 1958 to restore rights and procedural fairness to persons affected by decisions taken under that Act, and for related purposes
Contents
A Bill for an Act to amend the Migration Act 1958 to restore rights and procedural fairness to persons affected by decisions taken under that Act, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Act 2007.
2 Commencement
This Act commences on the day on which it receives the Royal Assent.
3 Schedules
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1--Amendment of the Administrative Decisions (Judicial Review) Act 1977
1 Paragraph (da) of Schedule 1
Repeal the paragraph.
Schedule 2--Amendments providing for the restoration of fair process
Migration Act 1958
1 Subsection 5(1) (definition of privative clause decision)
Repeal the definition.
2 Subsection 32(2)
Omit "the Minister is satisfied".
3 Paragraph 36(2)(a)
Omit "the Minister is satisfied".
4 Part 8
Repeal the Part.
Schedule 3--Amendments providing for the duration of detention
Migration Act 1958
1 Subsections 196(4), (4A), (5), (5A), (6) and (7)
Repeal the subsections.
Schedule 4--Amendments providing for the return to procedural fairness
Migration Act 1958
1 Section 51A
Repeal the section.
2 Section 97A
Repeal the section.
3 Section 118A
Repeal the section.
4 Section 127A
Repeal the section.
5 Section 357A
Repeal the section.
6 Section 422B
Repeal the section.
Schedule 5--Amendments providing for the provisions relating to character and conduct
Migration Act 1958
1 Section 339
Repeal the section, substitute:
339 Application for internal review
(1) An application for review of an internally-reviewable decision must:
(a) be made in writing in the form approved by the Secretary; and
(b) be given to the Secretary, at a prescribed place, within the prescribed period, being a period ending not later than:
(i) if the decision is covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision--28 days after the notification of the decision; or
(ii) if the decision is covered by paragraph (e), (f), (g) or (h) of that definition--70 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review in accordance with subsection (1) may only be made:
(a) if the decision is covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision--by the non-citizen who is the subject of that decision; or
(b) if the decision is covered by paragraph (e) or (h) of that definition--by the sponsor or nominator; or
(c) if the decision is covered by paragraph (f) or (g) of that definition--by the relative referred to in the paragraph concerned.
(3) An application for review of a decision covered by paragraph (a) or (b) of the definition of Part 5 reviewable decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of internally-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
2 Subsection 411(3)
Repeal the subsection, substitute:
(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or
(b) it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet.
3 Section 501
Repeal the section, substitute:
501 Special power to refuse or to cancel visa or entry permit
(1) The Minister may refuse to grant a visa to a person, or may cancel a visa that has been granted to a person, if:
(a) subsection (2) applies to the person; or
(b) the Minister is satisfied that, if the person were allowed to enter or to remain in Australia, the person would:
(i) be likely to engage in criminal conduct in Australia; or
(ii) vilify a segment of the Australian community; or
(iii) incite discord in the Australian community or in a segment of that community; or
(iv) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or violence threatening harm to, that community or segment, or in any other way.
(2) This subsection applies to a person if the Minister:
(a) having regard to:
(i) the person's past criminal conduct; or
(ii) the person's general conduct;
is satisfied that the person is not of good character; or
(b) is satisfied that the person is not of good character because of the person's association with another person, or with a group or organisation who or that the Minister has reasonable grounds to believe has been or is involved in criminal conduct.
(3) The power under this section to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person.
Schedule 6--Amendments providing for the end of mandatory detention
Migration Act 1958
1 After section 189
Insert:
189A Conditions of arrest
(1) An officer who has detained a person under section 189 must, as soon as practicable, take the person before a magistrate for a hearing and action in accordance with subsection (2).
(2) If the magistrate is satisfied that the person is a person to whom section 189 applies, and that his or her continued detention is, in all the circumstances, appropriate, the magistrate may issue a warrant:
(a) authorising the officer to convey the person to a detention centre established under this Act; and
(b) directing that the person, having been conveyed to that place in accordance with the warrant, be detained there until:
(i) the person is released from detention pursuant to paragraph 196(1)(c); or
(ii) a date specified in the warrant.
(3) To avoid doubt, section 189 does not apply to a person once he or she has been released from detention under this section.
2 Subsection 196(3)
Repeal the subsection.
Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Bill 2007 No. , 2007
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