Migration Amendment (Detention Arrangements) Act 2005
No. 79, 2005
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Detention arrangements
Part 1—Amendments
Migration Act 1958
Part 2—Application of amendments
Migration Amendment (Detention Arrangements) Act 2005
No. 79, 2005
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 29 June 2005]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Detention Arrangements) Act 2005.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 29 June 2005 |
2. Schedule 1, items 1 to 16 | The day on which this Act receives the Royal Assent. | 29 June 2005 |
3. Schedule 1, item 17 | The later of: (a) the start of the day on which this Act receives the Royal Assent; and (b) immediately after the commencement of item 15 of Schedule 1 to the Migration Litigation Reform Act 2005. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 1 December 2005 (paragraph (b) applies) |
4. Schedule 1, item 18 | The day on which this Act receives the Royal Assent. However, if item 17 of Schedule 1 to the Migration Litigation Reform Act 2005 commences on or before the day on which this Act receives the Royal Assent, the provision(s) do not commence at all. | 29 June 2005 |
5. Schedule 1, items 19 to 21 | The day on which this Act receives the Royal Assent. | 29 June 2005 |
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Detention arrangements
Part 1—Amendments
Migration Act 1958
1 After section 4
Insert:
4AA Detention of minors a last resort
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained…
Overview
The Migration Amendment (Detention Arrangements) Act 2005 (C2005A00079) was enacted by the Parliament of Australia on 29 June 2005 to amend the Migration Act 1958 and introduce various changes to the detention arrangements for non-citizens. The Act was designed to address the issue of immigration detention by introducing principles and mechanisms to limit the detention of minors and provide alternatives to detention. The policy objective was to ensure that detention is used as a measure of last resort and to provide more humane and flexible arrangements for those subject to mandatory detention orders. Key amendments include affirming that the detention of minors should only occur as a last resort, allowing the Minister to determine that certain detainees reside at specified places rather than being held in detention centres, and establishing a framework for reporting and assessing the detention of individuals who have been detained for extended periods. The Act also includes provisions for tabling statements in Parliament regarding decisions made by the Minister under certain sections.
Scope and Application
The Migration Amendment (Detention Arrangements) Act 2005 amends the Migration Act 1958 by introducing new provisions related to the detention of minors and the circumstances under which individuals can be detained or have their detention arrangements varied. The Act applies to all persons who are in detention or who are required or permitted to be detained under section 189 of the Migration Act 1958, including those already in detention when the amendments commence. The Act's provisions are effective nationwide, given the federal nature of the Migration Act 1958. The Act does not explicitly state exclusions or exemptions, but certain provisions do not apply to individuals covered by residence determinations, such as those under sections 197, 197A, 252AA to 252E, and other specified sections or regulations. The Act extends its application through subordinate instruments, such as regulations that may specify conditions for residence determinations and details of reports required under the new provisions.
Key Provisions
- The Migration Amendment (Detention Arrangements) Act 2005 introduces significant changes to the Migration Act 1958, particularly concerning the detention of minors and the powers of the Minister to manage detention arrangements. Section 4AA establishes the principle that the detention of minors should be a measure of last resort. This principle is reinforced by the definitions in sections 5(1), where terms such as "detain" and "detainee" are expanded to include persons covered by residence determinations, as clarified in section 197AC. The Act further clarifies that immigration detention extends to persons under residence determinations, with specific notes added in section 5(1). The Act also provides the Minister with a non-compellable power to grant a visa to a person in detention under section 189, as mentioned in section 65(1).
- The obligations imposed by the Act on the Minister include the power to determine that a person in detention may reside at a place other than an immigration detention centre if it is in the public interest to do so, as outlined in section 197AB. The Minister must specify the person by name, the conditions to be complied with, and communicate the decision in writing. If a residence determination is in force, the Act and regulations apply to the person as if they were in detention, with certain exceptions noted in section 197AC(3). The Minister also has the power to revoke or vary a residence determination if it is in the public interest, as per section 197AD, and must communicate any such decision in writing.
- The Act imposes specific consequences for breaches of its provisions. For instance, it is an offence for a lawyer to provide immigration legal assistance in preparing or making a request to the Minister to exercise powers under sections 195A, 197AB, or 197AD, unless the request relates to the other person, as per section 276(2A)(aa). Additionally, the Secretary is mandated to report to the Commonwealth Ombudsman regarding the detention of persons for more than two years, as specified in sections 486N and 486O. The Ombudsman must then provide an assessment of the detention arrangements to the Minister, which includes recommendations if deemed appropriate. The Minister is required to table a statement from the Ombudsman's assessment in Parliament within 15 sitting days, as stipulated in section 486P.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Reporting & Disclosure Obligations
- Prohibited Conduct
