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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Migration Amendment (Limits on Immigration Detention) Bill 2023
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Kylea Tink MP
Migration Amendment (Limits on Immigration Detention) Bill 2023
OUTLINE
The bill amends the Migration Act 1958 to improve Australia's compliance with human
rights obligations related to its immigration detention regime.
Australia's immigration detention regime requires that any non-citizen who is in the country
without a valid visa must be detained and may only be released from detention if they are
granted a visa or removed from the country. This bill does two things. Firstly, it will
introduce a 90-day limit on immigration detention, which can only be extended if the
Minister decides that, having regard to principles of international law, an extended period
of detention is necessary as a last resort, reasonable, and proportionate. This bill provides
that any extension of detention by the Minister is reviewable by the Administrative Appeals
Tribunal (AAT).
Secondly, this bill includes a prohibition of the detention of minors, in accordance with
human rights obligations.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
This clause is a formal provision and specifies that the short title of the bill is the Migration
Amendment (Limits on Immigration Detention) Bill 2023.
Clause 2: Commencement
This clause provides for the commencement of the Act on the day it receives Royal
Assent.
Migration Act 1958
Clause 3: Schedules
This clause provides that the Schedules to the Bill amend, or repeal legislation as
specified in the Schedules, and any other items in the Schedules have effect according to
their terms. This is a formal provision that clarifies how the operative items in the Bill are
intended to have their effect.
Schedule 1: Amendments
Item 1 - Section 4AA
This clause provides prohibition of the detention of minors; to be interpreted as a person
who is less than 18 years old.
Item 2 - Subsection 189(1)
This clause removes the requirement for an officer to detain a person if they know or
reasonably suspect that a person in the migration zone (other than an excised offshore
place) is an unlawful non-citizen and replaces it with the option to detain.
Item 3- At the end of subsection 189(1)
This clause inserts a note on the prohibition of child detention and a note on the 90-day
limit on detention.
Item 4- Subsection 189(3)
This clause removes the requirement for an officer to detain a person if they reasonably
suspect that a person (other than a person referred to in subsection (3A)) in an excised
offshore place is an unlawful non-citizen and replaces it with the option to detain.
Item 5- After subsection 189(4)
This clause establishes limited grounds under which an officer may detain a person, under
the above sections. The grounds are based on the principles of necessity, reasonability,
and proportionality.
Item 6- At the end of subsection 192(1)
This clause inserts a note on the prohibition of child detention and a note on the 90-day
limit on detention.
Item 7- Subsection 196(1)
This clause removes the requirement for an unlawful non-citizen detained under Section
189 to be kept in immigration detention.
Item 8- Subsections 196(2) to (7)
This clause provides that, in both deciding to detain a person and extending detention
beyond 90 days, the Minister must have regard to the principles of international law,
including those of necessity, reasonability, and proportionality, and provides that this
decision is reviewable by the Administrative Appeals Tribunal (AAT).
Item 9- Subsection 474(4) (before table item 1)
This clause adds 'extending a period of immigration detention' to the list of decisions which
are not deemed a privative clause decision. A privative clause decision is one which is
final, conclusive, and is prohibited from being challenged or appealed.
Item 10- Before paragraph 500(1)(a)
This clause allows applications to be made to the Administrative Appeals Tribunal for
review of a decision by the Minister to determine an extension of detention beyond 90
days.
Item 11- Before paragraph 500(4)(a)
This clause stipulates when a decision by the Minister to extend detention beyond 90 days
will not be reviewable, according to existing provisions.
Item 12- After subsection 500(4A)
This clause provides that a decision made by the Administrative Appeals Tribunal
about a reviewable decision regarding an extension of detention must occur within 7
business days. A conditional 7-day extension is provided for and if a decision cannot be
reached after that time, it is decided that the person is to be released from immigration
detention on a bridging visa.
Item 13- Application of amendments
This clause confirms that these amendments apply in relation to persons in immigration
detention on or after the day this Schedule commences.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Limits on Immigration Detention) Bill 2023
This bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the bill
The bill amends the Migration Act 1958 to improve Australia's compliance with human
rights obligations related to its immigration detention regime.
Australia's immigration detention regime requires that any non-citizen who is in the country
without a valid visa must be detained and may only be released from detention if they are
granted a visa or removed from the country. This bill does two things. Firstly, it will
introduce a 90-day limit on immigration detention, which can only be extended if the
Minister decides that, having regard to principles of international law, an extended period
of detention is necessary as a last resort, reasonable, and proportionate. This bill provides
that any extension of detention by the Minister is reviewable by the Administrative Appeals
Tribunal (AAT).
Secondly, this bill includes a prohibition of the detention of minors, in accordance with
human rights obligations.
Human rights implications
This Bill engages with the following applicable rights or freedoms-
International Convention on Civil and Political Rights
• The right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.
• The right to humane treatment in detention.
• The right to freedom of movement
• The right for anyone who is deprived of his liberty by arrest or detention, to be
entitled to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release if the
detention is not lawful.
Convention on the Rights of the Child (CRC).
• The best interests of the child.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues,
rather works to strengthen Australia's respect for human rights.
Kylea Tink MP