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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Refugee Protection Bill 2019
No. , 2019
(Mr Wilkie)
A Bill for an Act to provide a legislative response to
all people seeking asylum in Australia, and for
related purposes
No. , 2019
Refugee Protection Bill 2019
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Simplified outline and object of this Act ........................................... 2
4
Act binds the Crown .......................................................................... 3
5
Definitions ......................................................................................... 3
6
Application--international agreements for the protection of
rights .................................................................................................. 4
7
Severability ........................................................................................ 5
8
Principle of family unity .................................................................... 6
8A
Principle of the rights and best interests of the child ......................... 6
Part 2--Enabling of APASS
8
9
Intention that parties to APASS be legally bound ............................. 8
10
APASS centres .................................................................................. 8
11
Meaning of
APASS applicant
and
APASS applicant to
Australia
............................................................................................ 8
12
Australian quota of APASS applicants .............................................. 9
13
Determination of transfer arrangements of APASS applicants
to Australia ........................................................................................ 9
14
APASS case officers ........................................................................ 10
Part 3--Immigration detention
12
15
Relationship with other laws ........................................................... 12
16
Immigration detention ..................................................................... 12
17
Alternatives to immigration detention ............................................. 12
18
Access to assistance in alternatives to immigration detention ......... 13
19
Timeframes for the determination of alternatives to
immigration detention ..................................................................... 13
20
Revocation or variation of restrictions ............................................. 14
21
Reasons for immigration detention .................................................. 14
22
Time frames for immigration detention ........................................... 15
23
Information provided to detainees ................................................... 16
24
Access to services in detention ........................................................ 16
25
Communication for the purpose of obtaining immigration
assistance and immigration legal assistance .................................... 16
26
Children in detention ....................................................................... 17
27
Independent monitoring ................................................................... 18
Part 4--Adverse security assessments
20
ii
Refugee Protection Bill 2019
No. , 2019
28
Adverse security assessments .......................................................... 20
Part 5--Review of decisions
21
29
Review of decisions ......................................................................... 21
Part 6--Jurisdiction of courts
22
30
Jurisdiction of the Federal Circuit Court ......................................... 22
Part 7--Miscellaneous
23
31
Regulations ...................................................................................... 23
No. , 2019
Refugee Protection Bill 2019
1
A Bill for an Act to provide a legislative response to
1
all people seeking asylum in Australia, and for
2
related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Refugee Protection Act 2019
.
8
Part 1
Preliminary
Section 2
2
Refugee Protection Bill 2019
No. , 2019
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 after 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 and object of this Act
13
Simplified outline
14
(1) This Act enables the establishment of a network of centres, located
15
in and run by Asia Pacific countries including Australia, where
16
asylum seekers can go to be registered, have their immediate
17
humanitarian needs met and lodge a preference for country of
18
re-settlement. If the asylum seeker selects Australia, and is within
19
the specified quota, this Act establishes a process for assessing
20
their claim in Australia with appropriate oversight, limited
21
timeframes and judicial review.
22
(2) This Act does not allow mandatory detention and prioritises the
23
applicant's immediate needs and refugee and international human
24
rights law.
25
Preliminary
Part 1
Section 4
No. , 2019
Refugee Protection Bill 2019
3
Object of this Act
1
(3) The object of this Act is to provide a legislative response to people
2
seeking asylum in Australia, through the Asia Pacific Region, that
3
is sustainable, equitable and humane, and subject to appropriate
4
oversight and review;
5
(4) To advance its object, this Act:
6
(a) enables a regional framework initiated by the Australian
7
Government in partnership with one or more other countries
8
within the Asia Pacific region; and
9
(b) upholds Australia's obligations under international law,
10
specifically the Refugees Convention and other international
11
human rights law.
12
4 Act binds the Crown
13
This Act binds the Crown in each of its capacities.
14
5 Definitions
15
(1) In this Act:
16
adverse security assessment
has the same meaning as in Part IV of
17
the
Australian Security Intelligence Organisation Act 1979
.
18
APASS
(short for Asia Pacific Asylum Seeker Solution) means the
19
regional framework to manage movements of asylum seekers
20
within the Asia Pacific region:
21
(a) that is consistent with the Refugees Convention, the Refugees
22
Protocol, the New York Declaration and other international
23
human rights law; and
24
(b) to which Australia and one or more other countries within the
25
Asia Pacific region are parties.
26
APASS applicant
: see subsection 11(1).
27
APASS applicant to Australia
: see subsection 11(2).
28
APASS Australian quota
for a year means the quota for the year
29
determined under section 12.
30
Part 1
Preliminary
Section 6
4
Refugee Protection Bill 2019
No. , 2019
APASS case officer
means an APASS case officer appointed in
1
accordance with APASS.
2
APASS centre
: see section 10.
3
APASS processing conditions
has the same meaning as in APASS.
4
Note:
The APASS processing conditions under APASS include (but are not
5
limited to) the following:
6
(a) the timeframes and details of a visa application (including the
7
process of triage, security and health checks and required
8
documentation);
9
(b) specific rights regarding freedom of movement;
10
(c) specific assistance needs (including but not limited to, housing,
11
income, work rights and health);
12
(d) any specific protection concerns (such as women at risk, persons
13
with disabilities, unaccompanied minors, victims of trafficking,
14
victims of trauma and survivors of sexual violence, as well as
15
older persons).
16
IGIS
means the Inspector-General of Intelligence and Security.
17
international human rights law
means the international
18
agreements referred to in section 6.
19
Migration Act
means the
Migration Act 1958
.
20
New York Declaration
means the New York Declaration for
21
Refugees and Migrants, done at New York on 19 September 2016.
22
principle of family unity
has a meaning affected by section 8.
23
principle of the rights and best interests of the child
has a
24
meaning affected by section 8A.
25
Secretary
means the Secretary of the Department.
26
(2) An expression used in this Act that is defined for the purposes of
27
the Migration Act has the same meaning in this Act as it has in the
28
Migration Act.
29
6 Application--international agreements for the protection of rights
30
This Act does not apply to the extent (if any) to which it is
31
inconsistent with any of the following international agreements:
32
Preliminary
Part 1
Section 7
No. , 2019
Refugee Protection Bill 2019
5
(a) the Refugees Convention;
1
(b) the Refugees Protocol;
2
(c) the International Covenant on Civil and Political Rights, done
3
at New York on 16 December 1966 ([1980] ATS 23);
4
(d) the Convention against Torture and Other Cruel, Inhuman
5
and Degrading Treatment or Punishment, done at New York
6
on 10 December 1984 ([1989] ATS 21);
7
(e) the Convention on the Rights of the Child, done at New York
8
on 20 November 1989 ([1991] ATS 4);
9
(f) the International Covenant on Economic, Social and Cultural
10
Rights, done at New York on 16 December 1966 ([1976]
11
ATS 5);
12
(g) the Convention on the Elimination of all Forms of
13
Discrimination against Women, done at New York on
14
18 December 1979 ([1983] ATS 9);
15
(h) the Convention on the Rights of Persons with Disabilities,
16
done at New York on 13 December 2006 ([2008] ATS 12).
17
Note:
The text of an international agreement in the Australian Treaty Series
18
(ATS) could in 2019 be viewed in the Australian Treaties Library on
19
the AustLII website (http://www.austlii.edu.au).
20
7 Severability
21
(1) Without limiting the effect of this Act apart from this section, this
22
Act also has effect as provided by this section.
23
(2) To avoid doubt, no subsection of this section limits the operation of
24
any other subsection of this section.
25
External affairs power
26
(3) This Act has the effect it would have if its operation were expressly
27
confined to give effect to Australia's rights and obligations under
28
an agreement with one or more countries.
29
(4) This Act has the effect it would have if its operation were expressly
30
confined to acts or omissions that occur beyond the limits of the
31
States and Territories.
32
Part 1
Preliminary
Section 8
6
Refugee Protection Bill 2019
No. , 2019
(5) This Act has the effect it would have if its operation were expressly
1
confined to matters that are of international concern.
2
Aliens power
3
(6) This Act has the effect it would have if its operation were expressly
4
confined to:
5
(a) exercising a power or performing a function that affects an
6
alien (within the meaning of paragraph 51(xix) of the
7
Constitution); or
8
(b) conferring a right or imposing an obligation on such an alien.
9
8 Principle of family unity
10
(1) The Parliament affirms that the principle of family unity should be
11
adopted in conformity with the obligation to protect the family and
12
respect family life, subject to the best interests of the child, as
13
enshrined in many instruments of international law.
14
(2) The principle of family unity must be a paramount consideration in
15
any decision or other action taken for the purposes of this Act.
16
(3) The
principle of family unity
includes the principles that:
17
(a) a country should refrain from taking actions that would
18
disrupt members of a family unit of a person; and
19
(b) a country should take action to allow members of a family
20
unit of a person that are dispersed to be reunited without
21
returning them to a country where they would face danger.
22
Note:
The expression
member of the family unit
of a person is defined for
23
the purposes of the Migration Act.
24
8A Principle of the rights and best interests of the child
25
(1) The principle of the rights and best interests of the child must be a
26
paramount consideration in any decision or other action:
27
(a) taken for the purposes of this Act; and
28
(b) that affects a child.
29
(2) The
principle of the rights and best interests of the child
includes:
30
(a) the principle of family unity; and
31
Preliminary
Part 1
Section 8A
No. , 2019
Refugee Protection Bill 2019
7
(b) the principle that a country should recognise and provide for
1
every child's inherent right to life and ensure to the
2
maximum extent possible the survival and development of
3
the child (including health and mental health services,
4
counselling and trauma services, phone and internet,
5
education, legal services and accommodation and financial
6
assistance); and
7
(c) the principle that a country should ensure that throughout the
8
APASS process children will be assured the right to express
9
their views freely in all matters affecting them, their views
10
being given due weight in accordance with the child's age
11
and level of maturity.
12
Part 2
Enabling of APASS
Section 9
8
Refugee Protection Bill 2019
No. , 2019
Part 2--Enabling of APASS
1
2
9 Intention that parties to APASS be legally bound
3
Parliament recognises that it is the intention of APASS that each
4
party to APASS must be legally bound, either under international
5
law or domestic law, to provide effective protection for asylum
6
seekers and refugees.
7
10 APASS centres
8
An
APASS centre
is a centre established under APASS that
9
satisfies the following conditions:
10
(a) the centre is developed in cooperation with, and funded by,
11
the parties to APASS;
12
(b) the centre is developed in accordance with the Refugees
13
Convention and the other international instruments referred
14
to in section 6;
15
(c) the centre is located strategically to enable ease of access,
16
making it a preferred alternative to seeking the service of
17
people smugglers.
18
11 Meaning of
APASS applicant
and
APASS applicant to Australia
19
(1) A person is an
APASS applicant
if:
20
(a) the person is an asylum seeker or refugee; and
21
(b) the person is registered as an asylum seeker at an APASS
22
centre.
23
(2) An APASS applicant is an
APASS applicant to Australia
if:
24
(a) upon registration, the person selected Australia as a host
25
country; and
26
(b) the person has been deemed, in accordance with APASS, to
27
fit within the APASS Australian quota for the year during
28
which the person was registered; and
29
(c) the person has been recommended, in accordance with
30
APASS, to the Minister.
31
Enabling of APASS
Part 2
Section 12
No. , 2019
Refugee Protection Bill 2019
9
(3) If a person is an APASS applicant to Australia, the Minister is
1
responsible for that person and must ensure that the provisions of
2
this Act are fully applied to the APASS applicant, subject to
3
APASS and associated in-country agreements.
4
12 Australian quota of APASS applicants
5
(1) The Minister must, before the start of each year, declare by
6
legislative instrument the quota of APASS applicants for that year
7
that will be considered for permanent visas in Australia.
8
(2) The quota must be determined in accordance with APASS and with
9
the principles of genuine responsibility and cost sharing between
10
the parties to APASS.
11
13 Determination of transfer arrangements of APASS applicants to
12
Australia
13
(1) Within 60 working days after the day a person becomes an APASS
14
applicant to Australia, the Secretary must determine:
15
(a) that the APASS applicant will remain for processing at the
16
APASS centre where the APASS applicant was registered as
17
an asylum seeker; or
18
(b) that the APASS applicant may enter Australia while their
19
visa claim is being processed.
20
(2) A determination under subsection (1):
21
(a) may relate to more than one APASS applicant; and
22
(b) must specify each APASS applicant covered by the
23
determination by name, not by description of a class of
24
persons.
25
(3) A determination under subsection (1) is a legislative instrument.
26
(4) The Secretary must, in making a determination under
27
subsection (1), consider the following:
28
(a) Australia's non-refoulement obligations;
29
(b) the principle of family unity;
30
(c) whether the APASS centre where the APASS applicant was
31
registered is at capacity;
32
Part 2
Enabling of APASS
Section 14
10
Refugee Protection Bill 2019
No. , 2019
(d) whether the APASS applicant is facing personal danger;
1
(e) whether the APASS applicant is an unaccompanied minor,
2
and the principle of the rights and best interests of the child;
3
(f) whether the APASS applicant has any health needs that
4
indicate the transfer to Australia is necessary;
5
(g) whether the transfer to Australia is necessary in regards to
6
enhancing burden and responsibility-sharing and regional
7
cooperation, and not burden shifting.
8
(5) Subsection (4) does not limit the matters that the Secretary may
9
consider in making a determination under subsection (1). However,
10
Australia's obligations under international human rights law are to
11
be the Secretary's paramount consideration.
12
(6) If the Secretary determines, under subsection (1), that an APASS
13
applicant to Australia may enter Australia while their visa claim is
14
being processed, the APASS applicant must be individually
15
assessed as to the appropriateness of the conditions of transfer
16
(subject to procedural safeguards) prior to transfer. The procedural
17
safeguards include, but are not limited to, the following:
18
(a) that the APASS applicant will be legally admitted to
19
Australia;
20
(b) that the APASS applicant is both mentally and physically fit
21
for travel;
22
(c) any other safeguards prescribed by the regulations.
23
14 APASS case officers
24
(1) If it is determined under subsection 13(1) that an APASS applicant
25
will remain for processing at the APASS centre where the APASS
26
applicant was registered as an asylum seeker, an APASS case
27
officer must be allocated to the APASS applicant within 7 days.
28
(2) As soon as reasonably practicable after the allocation, the APASS
29
case officer must ensure that the APASS applicant is given:
30
(a) free and independent legal assistance and advice; and
31
(b) information regarding the APASS processing conditions.
32
Enabling of APASS
Part 2
Section 14
No. , 2019
Refugee Protection Bill 2019
11
(3) The APASS case officer must take all reasonable steps (including
1
liaising with Australian authorities):
2
(a) to ensure that a decision can be made on the APASS
3
applicant's visa application; and
4
(b) to assist the decision being made within 180 days from the
5
date of the application.
6
(4) The APASS case officer must ensure that the APASS applicant is
7
regularly informed about the process and status of the visa
8
application. The information must be given in a language and
9
format that the APASS applicant understands.
10
Part 3
Immigration detention
Section 15
12
Refugee Protection Bill 2019
No. , 2019
Part 3--Immigration detention
1
2
3
15 Relationship with other laws
4
This Part applies in relation to all immigration detention in
5
Australia, including detention in an APASS centre in Australia,
6
despite any other law of the Commonwealth, a State or a Territory
7
(whether written or unwritten).
8
16 Immigration detention
9
(1) The Parliament intends that immigration detention be:
10
(a) lawful, under both international law and domestic law; and
11
(b) necessary and proportionate; and
12
(c) for the shortest time possible; and
13
(d) in Australia.
14
(2) The Parliament also intends that alternatives to detention are the
15
preferred option to immigration detention for APASS applicants.
16
17 Alternatives to immigration detention
17
(1) If there is no reason under section 21 for one or more APASS
18
applicants to be taken into, or kept in, immigration detention, the
19
Secretary must, by legislative instrument, determine alternatives to
20
immigration detention that are to apply in relation to the APASS
21
applicant or applicants covered by the determination.
22
(2) A determination under subsection (1) must permit the APASS
23
applicant or applicants covered by the determination to live in the
24
community in accordance with the restriction (if any) specified in
25
the determination. The restriction may be any one of the following:
26
(a) a requirement to deposit or surrender documentation such as
27
passports;
28
(b) reporting conditions, such as periodic reporting to an
29
authority or organisation of a kind prescribed by the
30
Immigration detention
Part 3
Section 18
No. , 2019
Refugee Protection Bill 2019
13
regulations (which may include, for example, an immigration
1
authority or a non-government organisation);
2
(c) a requirement that the APASS applicant must reside at a
3
specific address or within a particular suburb or area;
4
(d) a requirement to provide a guarantor or surety who would be
5
responsible for ensuring the APASS applicant's attendance at
6
official appointments and hearings and for ensuring that the
7
APASS applicant otherwise reports as specified in any
8
condition of release.
9
(3) If a determination under subsection (1) includes a requirement that
10
an APASS applicant deposit or surrender identification
11
documentation, the Secretary must ensure that the APASS
12
applicant is issued with alternative forms of identification.
13
(4) A copy of a determination under subsection (1) must be given to
14
the APASS applicant or applicants covered by the determination.
15
18 Access to assistance in alternatives to immigration detention
16
(1) If a determination under subsection 17(1) is in force that covers an
17
APASS applicant:
18
(a) adequate material support, accommodation and access to
19
means of self-sufficiency (including any necessary financial
20
support) must be provided to the APASS applicant; and
21
(b) the APASS applicant must have the right to work if the
22
APASS applicant is aged 16 or over; and
23
(c) the APASS applicant must have access to each service
24
prescribed for the purposes of subsection 24(1).
25
(2) Paragraphs (1)(b) and (c) have effect despite any other law of the
26
Commonwealth, a State or a Territory (whether written or
27
unwritten).
28
19 Timeframes for the determination of alternatives to immigration
29
detention
30
A determination under subsection 17(1) remains in force for:
31
(a) 6 months; or
32
Part 3
Immigration detention
Section 20
14
Refugee Protection Bill 2019
No. , 2019
(b) if, on application, the Federal Circuit Court makes an order
1
fixing a longer period--that period.
2
20 Revocation or variation of restrictions
3
If a determination under subsection 17(1) is in force that covers an
4
APASS applicant, and the APASS applicant fails to comply with
5
the restriction specified in the determination, the Secretary may:
6
(a) revoke the determination; or
7
(b) vary the restriction.
8
21 Reasons for immigration detention
9
(1) An APASS applicant may be taken into, or kept in, immigration
10
detention only for one or more of the following reasons:
11
(a) to document the APASS applicant's entry;
12
(b) to record the APASS applicant's claims for asylum;
13
(c) to determine the APASS applicant's identity;
14
(d) to await health clearance so as to protect public health;
15
(e) to await security clearance;
16
(f) to prevent the APASS applicant from absconding if there is
17
evidence of a risk of the APASS applicant absconding;
18
(g) if there is risk that the APASS applicant might destroy
19
evidence or influence witnesses;
20
(h) if an adverse security assessment has been made in respect of
21
the APASS applicant.
22
(2) An APASS applicant must not be taken into, or kept in,
23
immigration detention for any of the following reasons:
24
(a) the APASS applicant's mode of arrival (for example by
25
boat);
26
(b) irregular entry or stay, provided that the APASS applicant
27
has presented themselves without delay to the authorities and
28
shown good cause for their irregular entry or stay;
29
(c) executive order.
30
(3) An APASS applicant must not be held in prison, with prisoners or
31
in prison-like facilities unless the APASS applicant has been
32
Immigration detention
Part 3
Section 22
No. , 2019
Refugee Protection Bill 2019
15
convicted of, or is being held in custody on remand in relation to,
1
an offence against a law of the Commonwealth, a State or a
2
Territory that is punishable by imprisonment.
3
(4) No APASS applicant may be subjected to arbitrary or mandatory
4
detention.
5
22 Time frames for immigration detention
6
(1) An APASS applicant (other than an APASS applicant referred to in
7
subsection 26(2)) must not be kept in immigration detention for
8
more than 3 months.
9
Note:
Subsection 26(2) is about the detention of children.
10
(2) On application, the Federal Circuit Court of Australia may extend,
11
or further extend, that period by up to 6 months. The court may do
12
so only if that period, or that period as last extended, has not yet
13
ended.
14
(3) In determining whether to make an order under subsection (2), the
15
Federal Circuit Court of Australia must take into account the
16
following:
17
(a) that detention of APASS applicants should only occur as a
18
measure of last resort and that there should be a general
19
presumption against the detention;
20
(b) whether there are any non-custodial measures available (for
21
example the imposition of reporting obligations, sureties or
22
other conditions);
23
(c) the balancing of the rights to liberty, security and freedom of
24
movement of the APASS applicant with the public policy
25
initiatives of detention.
26
(4) If the Federal Circuit Court of Australia makes an order under
27
subsection (2), the court may also make any other order the court
28
considers appropriate to facilitate the APASS applicant not being
29
kept in immigration detention for longer than the extended, or
30
further extended, period.
31
Part 3
Immigration detention
Section 23
16
Refugee Protection Bill 2019
No. , 2019
23 Information provided to detainees
1
Each APASS applicant that is taken into immigration detention
2
must be immediately informed (orally and in writing, and in a
3
language the APASS applicant understands) of the following:
4
(a) the reason for the APASS applicant's detention;
5
(b) the APASS applicant's legal rights in regards to the detention
6
(including the process of judicial review and the contact
7
information for legal aid and consular assistance);
8
(c) the proposed time frame for the APASS applicant's
9
detention.
10
24 Access to services in detention
11
(1) The regulations may prescribe any or all of the following services
12
for APASS applicants in immigration detention:
13
(a) health and mental health services;
14
(b) counselling and trauma services;
15
(c) phone and internet;
16
(d) education;
17
(e) visiting services (including daily access to visitors, whether
18
they are known to the APASS applicant or part of a broader
19
community or non-government service);
20
(f) government services (including immigration, housing and
21
Centrelink services);
22
(g) free and independent legal services.
23
(2) An APASS applicant in immigration detention must have access to
24
each service prescribed for the purposes of subsection (1).
25
25 Communication for the purpose of obtaining immigration
26
assistance and immigration legal assistance
27
(1) In this section,
immigration assistance
and
immigration legal
28
assistance
have the same meaning as in Part 3 of the Migration
29
Act.
30
Immigration detention
Part 3
Section 26
No. , 2019
Refugee Protection Bill 2019
17
(2) An APASS applicant in immigration detention is entitled, at any
1
time during business hours, to communicate and consult regarding
2
immigration assistance or immigration legal assistance.
3
(3) All reasonable efforts are to be made to facilitate an APASS
4
applicant to communicate or consult, outside business hours,
5
regarding immigration assistance or immigration legal assistance if
6
the need to communicate or consult is urgent.
7
(4) Adequate time and facilities are to be made available to an APASS
8
applicant in detention for the purpose of receiving immigration
9
assistance or immigration legal assistance.
10
(5) Without limiting subsection (4), an APASS applicant who is
11
receiving immigration assistance or immigration legal assistance,
12
or the APASS applicant's legal counsel, may be required to be
13
within sight, but must not be required to be within hearing, of
14
others (including immigration detention staff).
15
26 Children in detention
16
(1) It is the intention of Parliament that APASS applicants who are
17
children:
18
(a) should not be deprived of liberty, except as a measure of last
19
resort; and
20
(b) should be deprived of liberty only for the shortest appropriate
21
period of time, taking into account the extreme vulnerability
22
and need for care of children (particularly of unaccompanied
23
minors).
24
(2) Without limiting subsection (1) or section 8A, an APASS applicant
25
who is 18 years old or less, or who is reasonably suspected to be 18
26
years old or less, must not be kept in immigration detention for
27
more than 7 days.
28
Note:
Section 8A requires the principle of the rights and best interests of the
29
child to be a paramount consideration in any decision or other action:
30
(a) taken for the purposes of this Act; and
31
(b) that affects a child.
32
(3) On application, the Federal Circuit Court of Australia may extend,
33
or further extend, that period by up to 3 months. The court may do
34
Part 3
Immigration detention
Section 27
18
Refugee Protection Bill 2019
No. , 2019
so only if that period, or that period as last extended, has not yet
1
ended.
2
(4) If the APASS applicant is an unaccompanied minor, the first order
3
under subsection (3) in relation to the APASS applicant must be
4
obtained within 24 hours of the APASS applicant being taken into
5
immigration detention or as close as possible to that time.
6
(5) In determining whether to make an order under subsection (3), the
7
Federal Circuit Court must take into account the following:
8
(a) the effect of subsection (1) and section 8A;
9
(b) that detention of APASS applicants should only occur as a
10
measure of last resort and for the shortest possible time, and
11
that there should be a general presumption against the
12
detention;
13
(c) whether there are any non-custodial measures available (for
14
example the imposition of reporting obligations, sureties or
15
other conditions);
16
(d) the balancing of the rights to liberty, security and freedom of
17
movement of the APASS applicant with the public policy
18
initiatives of detention.
19
(6) If the Federal Circuit Court of Australia makes an order under
20
subsection (3), the court may also make any other order the court
21
considers appropriate to facilitate the APASS applicant not being
22
kept in immigration detention for longer than the extended, or
23
further extended, period.
24
27 Independent monitoring
25
(1) Immigration detention facilities must be subject to external
26
inspections every 6 months independent of the administration of
27
the facility.
28
(2) An inspection under subsection (1) must be conducted by an
29
independent organisation determined, by legislative instrument, by
30
the President of the Australian Human Rights Commission.
31
Immigration detention
Part 3
Section 27
No. , 2019
Refugee Protection Bill 2019
19
(3) For the purposes of carrying out an inspection under
1
subsection (1), an organisation determined under subsection (2)
2
may:
3
(a) access all information on the numbers of detainees and
4
locations of detention, as well as all information relevant to
5
the treatment of detainees (including their records and
6
conditions of detention); and
7
(b) freely choose which immigration detention facilities to visit
8
(including by making unannounced visits at their own
9
initiative, and which detainees to interview); and
10
(c) conduct private and fully confidential interviews with
11
detainees and staff or contractors (including medical staff or
12
contractors) working at the immigration detention facility in
13
the course of their visits; and
14
(d) make recommendations to the immigration detention
15
facilities administration and other competent authorities.
16
(4) This section does not limit any other right or power of an
17
organisation or individual to access an immigration detention
18
facility that exists apart from this section.
19
Part 4
Adverse security assessments
Section 28
20
Refugee Protection Bill 2019
No. , 2019
Part 4--Adverse security assessments
1
2
28 Adverse security assessments
3
(1) Despite paragraph 36(1)(b) of the
Australian Security Intelligence
4
Organisation Act 1979
, Part IV of that Act applies to a security
5
assessment in respect of an APASS applicant to Australia.
6
(2) The functions of the IGIS include inquiring, on the IGIS's own
7
initiative, into any adverse security assessments furnished in
8
respect of an APASS applicant to Australia.
9
(3) The IGIS may, despite any other law, communicate directly with
10
an APASS applicant to Australia for the purposes of an inquiry
11
referred to in subsection (2) in relation to the APASS applicant.
12
(4) To avoid doubt, subsection (3) of this section does not limit the
13
powers of the IGIS under subsection 17(2) of the
14
Inspector-General of Intelligence and Security Act 1986
in relation
15
to an inquiry referred to in subsection (2) of this section.
16
(5) Alternatives to detention that are appropriate in light of the specific
17
security risk posed must be identified and considered.
18
(6) Special consideration should be given to the wellbeing of the
19
children or other dependents of any asylum seekers against whom
20
an adverse security assessment is made.
21
Review of decisions
Part 5
Section 29
No. , 2019
Refugee Protection Bill 2019
21
Part 5--Review of decisions
1
2
29 Review of decisions
3
Applications may be made to the Administrative Appeals Tribunal
4
for review of any of the following decisions:
5
(a) a decision of the Secretary under subsection 13(1) that an
6
APASS applicant to Australia will remain for processing at
7
the APASS centre where the APASS applicant was registered
8
as an asylum seeker;
9
(b) a decision of the Secretary under section 20 to revoke a
10
determination under subsection 17(1);
11
(c) a decision of the Secretary under section 20 to vary the
12
restriction specified in a determination under
13
subsection 17(1).
14
Part 6
Jurisdiction of courts
Section 30
22
Refugee Protection Bill 2019
No. , 2019
Part 6--Jurisdiction of courts
1
2
30 Jurisdiction of the Federal Circuit Court
3
Jurisdiction is conferred on the Federal Circuit Court in relation to
4
any civil matter arising under this Act.
5
Miscellaneous
Part 7
Section 31
No. , 2019
Refugee Protection Bill 2019
23
Part 7--Miscellaneous
1
2
31 Regulations
3
The Governor-General may make regulations prescribing matters:
4
(a) required or permitted by this Act to be prescribed by the
5
regulations; or
6
(b) necessary or convenient to be prescribed for carrying out or
7
giving effect to this Act.
8