2010

The Parliament of the

Commonwealth of Australia
THE SENATE

Presented and read a first time

Migration Amendment (Detention of

Minors) Bill 2010
No.

, 2010

(Senator Hanson-Young)

A Bill for an Act to amend the Migration Act 1958

to prohibit the detention of minors in detention
centres, and for related purposes

Contents
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Short title ...........................................................................................1

Commencement.................................................................................1
Objects...............................................................................................2
Schedule(s) ........................................................................................3

Schedule 1Amendments relating to the detention of minors

Migration Act 1958

Schedule 2Amendments relating to the guardianship of

minors
Migration Act 1958

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Part 1Appointment of a guardian

Part 2Childrens Commissioner

Migration Amendment (Detention of Minors) Bill 2010

No.

, 2010

A Bill for an Act to amend the Migration Act 1958

to prohibit the detention of minors in detention
centres, and for related purposes

The Parliament of Australia enacts:

1 Short title

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This Act may be cited as the Migration Amendment (Detention of

Minors) Act 2010.

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.

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Commencement information
Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4
and anything in
this Act not
elsewhere covered
by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent

3. Schedule 2,
Part 1

The day after this Act receives the Royal

Assent

4. Schedule 2,
Part 2

Immediately after the commencement of the

Commonwealth Commissioner for Children
and Young People Act 2010, but if that event
does not occur, the Part does not commence
at all.

Note:

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(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.

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This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.

3 Objects
The objects of this Act are:
(a) to provide that children detained under the Migration Act
1958 not be held in immigration detention facilities but
instead be placed, along with their immediate family
members or guardians, in community residential facilities;
and
(b) to uphold Australias international obligations under the
United Nations Convention on the Rights of the Child,
particularly as they relate to:
(i) the primacy of the consideration of the childs best
interests (Article 4); and
(ii) the principle that children must only be detained as a
measure of last resort (Article 37).

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4 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.

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Schedule 1 Amendments relating to the detention of minors

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Schedule 1Amendments relating to the

detention of minors

Migration Act 1958

1 Section 4AA
Repeal the section, substitute:

4AA Principles protecting the rights of minors under this Act

(1) The principles set out in this section, drawn from Article 37 of the
Convention on the Rights of the Child, must in every relevant case
be applied by each person exercising a power or performing a
function under this Act.

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(2) No child shall be deprived of his or her liberty unlawfully or

arbitrarily. The arrest, detention or imprisonment of a child shall be
in conformity with the law and shall be used only as a measure of
last resort and for the shortest appropriate period of time.

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(3) Every child deprived of liberty shall be treated with humanity and
respect for the inherent dignity of the human person, and in a
manner which takes into account the needs of persons of his or her
age. In particular, every child deprived of liberty shall be separated
from adults unless it is considered in the childs best interest not to
do so and shall have the right to maintain contact with his or her
family through correspondence and visits, save in exceptional
circumstances.

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(4) Every child deprived of his or her liberty shall have the right to
prompt access to legal and other appropriate assistance, as well as
the right to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such action.

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2 Subsection 5(1)

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Insert:

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Amendments relating to the detention of minors Schedule 1

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Convention on the Rights of the Child means the United Nations

Convention on the Rights of the Child done at New York on
20 November 1989.

3 After subsection 197AB

Insert:

197ABA Minister must determine that minor is to reside at a

specified place rather than being held in detention centre
etc.
(1) If a person to whom this Subdivision applies is identified as a
minor, the Minister must, as soon as practicable but in any case
within 12 days, make a determination (a residence determination)
to the effect that the person is to reside at a specified place, instead
of being detained at a place covered by the definition of
immigration detention in subsection 5(1).
(2) If a person to whom this Subdivision applies is a member of the
same family unit as a minor to whom subsection (1) applies, the
Minister must, as soon as practicable, make a determination (a
residence determination) to the effect that the person is to reside
with the minor at a specified place, instead of being detained at a
place covered by the definition of immigration detention in
subsection 5(1).
(3) If no person over the age of 18 has been identified as a member of
the same family unit as a minor to whom subsection (1) applies,
but the minor is, or has been, in the care of another person to whom
this Subdivision applies, the Minister must, as soon as practicable,
make a determination (a residence determination) to the effect that
the person is to reside with the minor at a specified place, instead
of being detained at a place covered by the definition of
immigration detention in subsection 5(1).
(4) The Minister may decline to make a determination under
subsection (2) or (3) if the Minister decides that it is in the best
interests of the child to do so.
Note:

Section 4AA sets out principles relevant to making a determination

under this subsection.

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Schedule 2 Amendments relating to the guardianship of minors

(5) To avoid doubt, the Minister may delegate to an authorised officer

the power to make a determination under subsection (1), (2) or (3),
provided that the officer is:
(a) the Secretary; or
(b) an SES employee, or equivalent officer.

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(6) Regulations made for the purposes of this section must provide:
(a) a method for a person to apply for recognition of:
(i) his or her relationship to a minor for the purposes of
subsection (2); or
(ii) his or her care of a minor for the purposes of
subsection (3); and
(b) for the recognition of that status to be determined within 30
days of application.

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5 Subsection 197AD(2)
After 197AB(1) and (2), insert and 197ABA(1), (2) and (3).

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Amendments relating to the guardianship of minors Schedule 2

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Schedule 2Amendments relating to the

guardianship of minors

Migration Act 1958

Part 1Appointment of a guardian

1 Subsection 197ABA(4)

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After Minister decides, insert , in consultation with the guardian of

the minor if one has been appointed under section 197AH,

2 At the end of Division 7 of Part 2

Add:

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Subdivision CAppointment of a guardian

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197AH Appointment of a guardian

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(1) If a person to whom Subdivision B applies is identified as a minor,

the Minister must as soon as practicable but in any case within 12
days, appoint a person to act as guardian of the minor.
(2) An appointment under subsection (1) must be made by notice in
writing to the person appointed as guardian, and a copy given to
the minor.
(3) An appointment under subsection (1) remains in force until:
(a) this Act no longer requires or permits the person to be
detained or to reside at a specified place under a residence
determination; or
(b) the appointment is revoked by the Minister, in writing, and a
new appointment is made under that subsection; or
(c) the minor reaches the age of 18.
(4) A person must not be appointed as a guardian of a minor under
subsection (1) unless the Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or
experience and is of good character; and

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Schedule 2 Amendments relating to the guardianship of minors

(b) the person has a demonstrated commitment to, and capacity

to advance the rights, interests and well-being of, children
and young people; and
(c) the person is able to represent the best interests of the minor.

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(5) A person appointed as a guardian to a minor under subsection (1) is

authorised by this section to:
(a) represent the minor as guardian in respect of any provision of
this Act; and
(b) advocate for the best interests of the child in any relevant
proceeding or forum; and
(c) advocate for the rights of the child in any relevant proceeding
or forum.

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(6) To avoid doubt, the Minister may delegate to an authorised officer

the power to make an appointment under subsection (1), provided
that the officer is:
(a) the Secretary; or
(b) an SES employee, or equivalent officer.

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Part 2Childrens Commissioner

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1 Subsection 5(1)

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Insert:
Childrens Commissioner means a person appointed under
section 13 of the Commonwealth Commissioner for Children and
Young People Act 2010.

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2 Subsection 197AH(1)
Omit appoint a person, substitute appoint the Childrens
Commissioner.

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3 Transitional
An appointment made under subsection 197AH(1) before the
commencement of this Part has effect (after the commencement of this
Part) as if the person appointed were the Childrens Commissioner.

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