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............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 1

Schedule 1—Duration of detention                                                                               1

Migration Act 1958                                                                                                     1

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.

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                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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]