Migration Amendment (Duration of Detention) Act 2003
No. 90, 2003
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Duration of detention
Migration Act 1958
Migration Amendment (Duration of Detention) Act 2003
No. 90, 2003
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 23 September 2003]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Duration of Detention) Act 2003.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
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 | 23 September 2003 |
2. Schedule 1 | The day after this Act receives the Royal Assent | 24 September 2003 |
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 is for additional information that is not part of this Act. This information may be included 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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Duration of detention
Migration Act 1958
1 At the end of section 196
Add:
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
Note: The heading to section 196 is altered by omitting “Period” and substituting “Duration”.
2 Existing orders unaffected
Subsections 196(4) to (7) of the Migration Act 1958 as added by item 1 do not affect the validity of any order made by a court before the commencement of this Schedule.
[Minister’s second reading speech made in—
House of Representatives on 18 June 2003
Senate on 11 August 2003]
Overview
The Migration Amendment (Duration of Detention) Act 2003, enacted by the Parliament of Australia, aims to address the issue of prolonged detention of individuals under the Migration Act 1958. This legislation was introduced to provide clearer guidelines on the duration of detention for certain individuals, particularly those whose visas have been cancelled or who are awaiting deportation. The Act ensures that detention can continue in certain circumstances unless a court determines otherwise, aiming to balance the need for effective immigration control with the rights of individuals. The policy objective is to provide a legal framework that supports the enforcement of immigration laws while safeguarding against indefinite detention without due process. The Act came into effect on 24 September 2003, following Royal Assent on 23 September 2003.
Scope and Application
The Migration Amendment (Duration of Detention) Act 2003 applies to individuals who are detained under the Migration Act 1958, specifically those detained as a result of visa cancellation under section 501 or pending deportation under section 200. This legislation impacts the duration of their detention, ensuring it continues unless a court determines it unlawful or that the detained individual is not an unlawful non-citizen. The Act's jurisdiction is national, as it is a Commonwealth Act, and it applies across Australia. Notably, the Act does not affect existing orders made by a court before its commencement, preserving the validity of those prior decisions. The Act extends its application through the amendments it makes to the Migration Act 1958, which governs the detention and removal of non-citizens from Australia.
Key Provisions
The Migration Amendment (Duration of Detention) Act 2003 amends the Migration Act 1958 to modify the conditions under which a non-citizen can be detained. Specifically, section 196 of the Migration Act 1958 is amended by inserting new subsections (4), (4A), (5), (5A), and (6), which provide that a person detained as a result of visa cancellation or pending deportation is to remain detained unless a court determines that the detention is unlawful or that the detained person is not an unlawful non-citizen. This applies regardless of the likelihood of removal or deportation and irrespective of the legality of the visa decision. These provisions are subject to certain exceptions outlined in paragraphs (1)(a), (b), and (c) of the amended section.
Under the amended Migration Act 1958, various obligations are imposed on the parties involved. The primary obligation falls on the authorities responsible for detaining non-citizens, who must ensure that detention continues unless a court makes a final determination that the detention is unlawful or that the detained person is not an unlawful non-citizen. This places a burden on the courts to review detention cases thoroughly and to provide timely and definitive rulings on the legality of the detention. Additionally, the authorities must comply with the new provisions despite any other conflicting laws, as stated in subsection (6) of the amended section 196.
The Act also introduces potential penalties and consequences for non-compliance. While the Act itself does not specify detailed penalties, breaches of the amended detention provisions could lead to legal challenges and judicial review. If a court finds that a detention is unlawful, this could result in the release of the detained person, which may have significant implications for immigration control and enforcement. The Act’s provisions are designed to ensure that detention is lawful and justified, emphasising the importance of judicial oversight in maintaining the balance between national security and individual rights.