Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION REGULATIONS (AMENDMENT) 1992 NO. 311

EXPLANATORY STATEMENT

STATUTORY RULES 1992 No. 311

Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affair

Migration Act 1958

Migration Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition, section 113 of the Act provides that the Governor-General may make regulations to make provision in relation to the operation and regulation of detention centres. Without limiting the generality of subsection 113(2), subsection 113(3) provides that such regulations may deal with the conduct and supervision of detainees and the powers of persons performing functions in connection with the supervision of detainees.

The purpose of this amendment is to provide power under the Migration Regulations for the Secretary of the Department of Immigration, Local Government and Ethnic Affairs, acting on medical advice, to use reasonable force to cause a detainee to accept medical treatment, when the detainee has refused or failed to consent to the treatment, or is not reasonably capable of giving consent to the treatment, and in the absence of such treatment, there would be serious risk to the life or health of the detainee.

The need to make this amendment has arisen because it has been recommended that applications for refugee status of two people be rejected. These two individuals are held in custody under the Migration Act, and have gone on a hunger strike.

A Court Order has declared on an interim basis that the Department has power to feed or administer nourishment to these individuals against their will, and to use such force as necessary. The declaration was made by Judge Cohen of the NSW State Supreme Court on 24 September 1992. The order is valid until 30 September 1992. The Department's capacity to act is currently on the basis of this order. The matter has to be argued finally in the NSW State Supreme Court on 30 September 1992. It is probable that at this hearing the order will not be maintained.

The Attorney-General's Department has advised that the Regulations come within the regulation making power conferred in section 113 of the Act.

The details of the Regulations are:

•       Regulation 1 provides for the Migration Regulations to be amended.

•       Regulation 2 inserts a new provision 182C, which provides the Secretary of the Department of Immigration, Local Government and Ethnic Affairs with the power, acting on medical advice, to use reasonable force to cause a detainee to accept medical treatment, when the detainee has refused or failed to consent to the treatment, or is not reasonably capable of giving consent to the treatment, and in the absence of such treatment, there would be serious risk to the life or health of the detainee.

The Regulations will commence on gazettal.


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