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.
Overview
The Migration Regulations (Amendment) 1992 No. 311 was enacted to address an urgent need to provide the Secretary of the Department of Immigration, Local Government and Ethnic Affairs with the authority to compel medical treatment on detainees who refuse or are unable to consent to such treatment, when there is a serious risk to their health or life. This legislative amendment was introduced by the Parliament of Australia and is grounded in the regulation-making powers conferred under section 113 of the Migration Act 1958. The policy objective is to ensure that detainees in custody who are refusing medical treatment, such as those on a hunger strike, can be administered necessary medical interventions to preserve their health and life, thereby aligning with the Court’s interim order which is set to expire. These regulations aim to provide a legal basis for the Secretary to act on medical advice and use reasonable force if required, ensuring continuity in the capacity to act as determined by the Court’s interim order.
Scope and Application
The Migration Regulations (Amendment) 1992 No. 311 applies to individuals who are detainees under the Migration Act 1958 and are subject to the operational and regulatory framework of the Act. Specifically, the amendment provides the Secretary of the Department of Immigration, Local Government and Ethnic Affairs with the authority to use reasonable force to compel detainees to accept medical treatment if they refuse or are unable to consent, and if such treatment is critical to prevent serious harm to their health or life. This amendment is a response to a court order issued by Judge Cohen of the NSW State Supreme Court, which allowed the Department to feed or administer nourishment to two individuals on a hunger strike against their will. The amendment seeks to ensure that the Department can continue to act in such circumstances if the court order is not upheld in a final hearing scheduled for 30 September 1992. The regulation making power is derived from section 113 of the Migration Act 1958, which pertains to the operation and regulation of detention centres, including the conduct and supervision of detainees. The Regulations are set to commence upon gazettal and are applicable nationwide as they pertain to the Commonwealth's jurisdiction over immigration and detention matters.
Key Provisions
The Migration Regulations (Amendment) 1992 No. 311 amends the Migration Regulations under the Migration Act 1958 (the Act). Specifically, it introduces new provisions that grant the Secretary of the Department of Immigration, Local Government and Ethnic Affairs the authority to use reasonable force to ensure that a detainee receives necessary medical treatment. This authority is exercised when a detainee has refused or failed to consent to the treatment, is not reasonably capable of giving consent, and the absence of such treatment poses a serious risk to their life or health (Regulation 2, new provision 182C). This amendment responds to a situation where two individuals, whose refugee status applications have been recommended for rejection, are held in custody and have engaged in a hunger strike.
The obligations imposed by these Regulations require the Secretary to act on medical advice when determining the necessity of using reasonable force for medical treatment of detainees. The Secretary must ensure that the use of force is reasonable and directly related to the exigency of the detainee's medical condition. This requirement underscores the importance of medical expertise in making decisions about the use of force in such sensitive circumstances.
Failure to comply with the provisions of these Regulations can lead to legal consequences. While the specific penalties are not detailed within the Regulations themselves, breaches of the Migration Act or its regulations can result in various civil and criminal penalties. These may include fines and imprisonment, depending on the severity of the breach and the specific provisions of the Act being contravened. The precise nature and extent of penalties are generally outlined in the Migration Act 1958 and any related case law. The immediate context of this amendment is grounded in a Court Order that allowed the Department to administer nourishment to the detainees against their will, but this Order is set to expire, prompting the legislative change to ensure continued legal authority.