Migration Amendment (Limits on Immigration Detention) Bill 2023

The billamends 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.

https://www.legislation.gov.au/Details/C2023B00184

Written by Ross Ahmadzai

27 Nov, 2023

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