Dear Refugee Advocates,

Just in case you feel like reading the legislating used to remove children from detention and which is now being used to get kids out a second time 5 years later, here are the links. It is important to note that the legislation had carefully chosen phrases such as “non-compellable discretionary power” which ensured that the power to release belonged to the Minister and was not enforceable by legislation. Some might say legislation which only worked when the former Government was under pressure from its own dissidents.

It is these same powers which the present Gillard Government is using to release children five years later.

This section 4AA in the Migration Act 1958 proposed in 2005 to state an affirmation by the Parliament that, as a matter of principle, a minor shall only be detained as a measure of last resort. The Bill was passed but 5 years later 723 children and teenagers are locked up.

Clearly this is not good enough. We cannot rely on the decency of a minister to ensure that children’s human rights are respected. Nor can we rely on a humanitarian crisis such as exists among the teenagers locked up in motels to propel governments to release children. The Greens need our support to get legislation passed exempting children under 18 years from detention.

And lastly let us not forget that single men and women are human beings too. Until mandatory detention legislation is repealed our fight for the human rights of all asylum seekers is not over.

BELOW is a link to the 2005 BILL

The Migration Amendment (Detention Arrangements) Bill 2005 (“the Bill”) Bill proposes a series of amendments to the Migration Act.

Detention of Children

Item 1 inserts new subsection 4AA(1) in the Migration Act stating that Parliament affirms as a principle that ‘a minor’ shall only be detained ‘as a measure of last resort’. The explanatory memorandum notes that:

This is to make plain that where detention of an unlawful non-citizen family (with minor children) is required under the Act and children are detained in an immigration detention centre or a residential housing project, it should only be because there is no other viable option available.

This may be done for compelling reasons, including Migration Amendment (Detention Arrangements) Bill 2005 where conditions of a residence determination have been breached, primary assessment is being undertaken or removal arrangements are underway.12

Below is the link Explanatory Memoranda to


1. The Migration Amendment (Detention Arrangements) Bill 2005 (“the Bill”)amends provisions in the Migration Act 1958 (“the Act”) to provide greater flexibilityand transparency in the administration of the detention of persons known or reasonably

suspected to be unlawful non-citizens. The Bill amends the Act to:

state that the Parliament affirms as a principle that a minor shall only bedetained as a measure of last resort;

provide a non-compellable power for the Minister to specify alternativearrangements for a person’s detention and to impose conditions to apply to the detention of that person;

provide a non-compellable power for the Minister to grant a visa to a personwho is in detention; and

require the Secretary to report to the Commonwealth Ombudsman on personswho have been detained for two years or more, and for the Ombudsman toprovide assessments and recommendations relating to those persons to theMinister, including statements to be tabled.

Minor to be detained as a last resort

2. New section 4AA is proposed to state an affirmation by the Parliament that, as amatter of principle, a minor shall only be detained as a measure of last resort.

3. The new section is proposed to indicate that the principle relates to the holding ofchildren in traditional detention arrangements. The principle would indicate that,where detention of a child is required under the Act, it should, when and whereverpossible, take place in the community, under a residence determination.

NB A residence determination did not require being locked up or under guard

Community Detention Arrangements

4. Currently the Act requires that a person in immigration detention be accompaniedand restrained by, or on behalf of, an immigration officer or held in securedarrangements. This is required regardless of the particular characteristics of theperson, such as their age, health, behaviour, or likelihood to abscond.

5. The new non-compellable power in Subdivision B of Division 7 of Part 2 will allowthe Minister, acting personally, to specify alternative arrangements for a person’s


6. In particular, this power will enable the Minister to allow families with children toreside in the community at a specified place (instead of at a detention centre orresidential housing project) in accordance with conditions that address their individual circumstances.

7. These conditions are expected to be such as to require the person to be present atthe specified residence during specified hours, and to report to immigration officials atspecified times. The types of conditions that could be included would not be limited.

Under these arrangements, detainees would be free to move about in the communitywithout being accompanied or restrained by an officer under the Act.

The onlyrestraint on a person to whom the Minister’s determination applies would be that he orshe complies with the conditions specified in that determination.

8. The Minister will be publishing instructions and guidelines in relation to theexercise of this power, with particular emphasis being placed on the Government’sintention that the best interests of children will be taken into account, and where

detention of an unlawful non-citizen family (with children) is required under the Act,detention should be under these alternative arrangements where and as soon aspossible, rather than under traditional detention.

9. It is the Government’s intention that where persons who are known or reasonablysuspected to be unlawful non-citizens who are in a family have made a valid visa

application and are awaiting the Minister’s delegate’s decision on that application, orremoval is imminent, or a family member has breached the conditions of the Minister’sresidence determination, that the family (including the father) will be detained, ifpossible, in a residential housing project that is in the city nearest to the family’s priorresidence.

My apologies for ramshackle presentation of this information – My excuse is that I am on holidays at the beach.

Pamela Curr

Campaign Coordinator

Asylum Seeker Resource Centre

12 Batman Street, Melbourne

ph 0393266066 / 0417517075

Under the Migration Act ( section 10)

“a child born in Australia to unlawful non-citizens,is taken to have entered Australia at birth.

The child is taken to be an unlawful non-citizen from birth.”

As an unlawful non-citizen that baby must be locked up at birth.

This is mandatory detention.

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