The Minister for Immigration and Citizenship recently announced additional reforms to Australia’s immigration system. These reforms are in addition to the changes sought to be introduced by the Migration Legislation Amendment Bill (No. 1) 2008 which is currently before Parliament. That Bill, among other things, would streamline tribunal procedures and amend time limits for applying to the court for judicial review of migration decisions.
The latest reforms, announced 29 July, relate to Australia’s immigration detention system. The new direction is intended to fundamentally overturn the current model of immigration detention. The new policy emphasises a risk-based approach to detention and makes detention in immigration detention centres an option of last resort.
According to Senator Evans, there will be a marked departure from current practices. In the future, the presumption will be that persons will remain in the community while their immigration status is resolved. The Department of Immigration and Citizenship will have to justify why a person should be detained. Mandatory detention would only remain for three groups of people who pose a risk to the community:
- all unauthorised arrivals, for management of health, identity and security risks to the community;
- unlawful non-citizens who present unacceptable risks to the community; and
- unlawful non-citizens who have repeatedly refused to comply with their visa conditions.
With respect to the first group of people, unauthorised arrivals, those individuals would be released into the community once health, identity and security checks have been successfully completed (unless, of course, it turned out that they presented an unacceptable risk).
Under the changes, children will no longer be detained in immigration detention centres. Instead, children in the company of family members will be accommodated in immigration residential housing or community settings. To implement these reforms, the Labor Government has suggested that it may review the issue of what constitutes detention under the Migration Act 1958 (Cth).
The new policy is designed to ensure that detention in immigration detention centres will only be used for the shortest practicable time. In recent years, significant numbers of detainees experienced long-term detention. Long-term detention has been most likely to occur in cases where individuals had breached their visa conditions and then used all available appeal processes.
Under the new system, once an individual has been detained, a senior departmental official will review their case every three months to ensure that further detention is justified. The Labor Government will also be seeking to have the Immigration Ombudsman review the case of detainees case after six months of detention.
In addition, asylum seekers will receive publicly funded advice and assistance, access to an independent review of unfavourable decisions, and external scrutiny by the Immigration Ombudsman.
Individuals who have no right to be in Australia to whom Australia does not have international protection obligations will be removed from Australia as quickly as possible.