Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

That is indeed my intention.

Leave granted.

I move:

(4) Schedule 3, page 12 (after line 10), after proposed item 8A, insert:

8B After section 197AA

  Insert:

197AAA Minister must determine that minor is to reside at a specified place rather than being held in detention facility

Residence determination for minor

(1) If a person to whom this Subdivision applies is identified as a minor, the Minister must:

  (a) 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); and

  (b) do so as soon as practicable, but in any case within 30 days, after the person is identified as a minor.

Residence determination for member of minor ' s family unit

(2) If:

  (a) a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

  (b) a person to whom this Subdivision applies is a member of the family unit of the minor;

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 the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Residence determination for minor ' s guardian or carer

(3) If:

  (a) a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

  (b) a person to whom this Subdivision applies has not been identified as a member of the family unity of the minor; and

  (c) the minor is, or has been, in the care of another person (a guardian) to whom this Subdivision applies;

the Minister must, as soon as practicable, make a determination (a residence determination) to the effect that the guardian is to reside with the minor at the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Minister may refuse to make determination if in best interests of a minor

(4) Despite subsections (2) and (3), the Minister may refuse to make a determination under either of those subsections if the Minister is satisfied that it is in the best interests of the minor to do so.

Note: Section 4AA sets out principles relevant to making a determination under this subsection.

Residence determination must specify names and conditions

(5) A residence determination must:

  (a) specify the person or persons covered by the determination by name, not by description of a class of persons; and

  (b) specify the conditions to be complied with by the person or persons covered by the determination.

Residence determination must be in writing

(6) A residence determination under subsection (1), (2) or (3) must be made by notice in writing to the person or persons covered by the determination.

Regulations

(7) Regulations made for the purposes of this section must prescribe:

  (a) a method for a person to whom this Subdivision applies 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) that the application must be determined within 30 days of the application being made.

Review

(8) Application may be made to the Administrative Appeals Tribunal for review of a decision under this section.

8C Subsection 197AD(2)

  Omit "subsections 197AB(1) and (2)", insert "subsections 197AAA(1), (2), (3) and (5) and 197AB(1) and (2)".

8D Section 197AF

  Repeal the section, substitute:

197AF Power to make etc. residence determination

Who can make residence determinations

(1) The power to make a residence determination under subsection 197AAA(1), (2) or (3) may only be exercised by:

  (a) the Minister personally; or

  (b) the Secretary; or

  (c) an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

(2) The power to make a residence determination under subsection 197AB(1) may only be exercised by the Minister personally.

Who can vary or revoke residence determinations

(3) The power to vary or revoke a residence determination made under subsection 197AAA(1), (2) or (3) may only be exercised by:

  (a) the Minister personally; or

  (b) the Secretary; or

  (c) an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

(4) The power to vary or revoke a residence determination made under subsection 197AB(1) may only be exercised by the Minister personally.

8E At the end of Division 7 of Part 2

  Add:

Subdivision C—Miscellaneous

197AH Definitions

     In this Subdivision:

  designated person means:

  (a) an authorised officer; and

  (b) a person appointed or employed by, or for the performance of services for:

     (i) the Commonwealth, a State or a Territory; or

     (ii) an authority of the Commonwealth, a State or a Territory; and

  (c) a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.

  immigration detention facility means:

  (a) a detention centre established under this Act; or

  (b) a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1); or

(c) a place or facility in a regional processing country where restraint is exercised over the liberty of a person who is taken to that country under section 198AD.

  journalist has the same meaning as in the Evidence Act 1995.

  official employment means:

  (a) appointment or employment by, or the performance of services for:

     (i) the Commonwealth, a State or a Territory; or

     (ii) an authority of the Commonwealth, a State or a Territory; or

  (b) employment by a person or body contracted by the Commonwealth or an authority of the Commonwealth to perform services in relation to an immigration detention facility.

  protected immigration detention facility information means information or a document that:

  (a) was obtained by a person in the course of official employment; and

  (b) relates to an immigration detention facility.

  quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

  relevant authority means:

  (a) in any case—the Department and the Australian Federal Police; and

  (b) if:

     (i) the victim of an alleged reportable assault is a child; and

     (ii) the alleged assault occurs in a State or Territory;

     a relevant authority of the State or Territory that has functions relating to child safety; and

  (c) if:

     (i) the victim of an alleged reportable assault is a child; and

     (ii) the alleged assault occurs in a foreign country;

     a police force of the foreign country.

  reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:

  (a) unlawful sexual contact;

  (b) sexual harassment;

  (c) unreasonable use of force;

  (d) any other assault.

197AI Mandatory reporting of reportable assaults

(1) If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:

  (a) the alleged assault; and

  (b) the grounds on which the person has formed the belief that the alleged assault occurred.

Offence

(2) A person commits an offence if:

  (a) the person is required to make a notification under subsection (1); and

  (b) the person fails to comply with the requirement.

Penalty:   60 penalty units.

Geographical jurisdiction

(3) Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).

This amendment goes to releasing children from detention, ensuring the minister uses the power he already has to allow families to be given a residence determination—that is, where it is safe to do so, where it is able to happen, children and their families can be moved from detention facilities into the community securely and safely. It is the practical element to ensuring that children can be released from detention.

This amendment also goes to the issue of mandatory reporting. I spoke about this in my speech in the second reading debate. This is to ensure that where there is criminal activity or a child has been abused, where abuse has been witnessed, whoever is working in the facility is required by law to report that abuse. It is the same standard that we set in our schools and in our hospitals and of professionals working in other public institutions. If we are serious about ensuring that children are safe in immigration detention facilities or in any government institution, then wherever abuse is witnessed or known of, it should be reported to the police. There should be no hiding for the perpetrators of abuse. We know what happens when perpetrators get to hide: their abuse festers and the people who suffer are the children. It is important that we have a very clear understanding: if you are in a facility and you see abuse, you are required not to stay silent, not to let the abuser get away with it, but instead you are required to act in the best interests of the child to ensure they are protected from the perpetrator.