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Ls220 Constitutional Law 2014 Assignment

The question of constitutionality

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Abstract

An Opposition MP aims to introduce in the Commonwealth Parliament the Migration Bill

2014. S 180 of the Bill provides that an officer must detain a person if he or she knows or

reasonably suspects that the person is an unlawful non-citizen in or outside the migration

zone.

Under s 181 of the Bill, an officer must remove an unlawful non-citizen ‘as soon as

reasonably practicable’ if the person is not immigration-cleared. Otherwise, detention is to

continue until the Refugee Review Commission (RRC) determines that detention is unlawful.

The procedure provides that, within 3 weeks upon application by the detained person, the

RRC ‘determines’ the lawfulness of the detention. The RRC’s determination is subsequently

conveyed to the Registry of the Federal Court within 2 weeks of the ‘determination’ being

made. Initially, s 180 provided that a determination by the RRC would not become

enforceable without the institution of separate proceedings before the Federal Court.

However, in the drafting process this mechanism was revised, so that, finally, RRC’s

determinations become effective after transmission to the Registry of the Federal Court, in

the absence of an application for review by any interested party within 2 weeks from the time

of transmission.

Advise the MP on the legality, in particular, the constitutionality, of the Migration Bill 2014.