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2008 - 2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (ABOLISHING DETENTION DEBT) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
MIGRATION AMENDMENT (ABOLISHING DETENTION DEBT) BILL 2009
OUTLINE
The Migration Amendment (Abolishing Detention Debt) Bill 2009 (the "Bill")
amends the Migration Act 1958 (the "Migration Act") to remove the liability
for immigration detention and related costs for certain persons and liable
third parties and extinguish all outstanding immigration detention debts.
In particular, the Bill:
. repeals provisions in Division 10 of Part 2 of the Migration Act in
relation to the liability of a non-citizen who is detained in
immigration detention, including liable third parties, who are liable
to pay the Commonwealth the costs of their transport between a place
where the non-citizen is detained and another place within Australia
and the daily maintenance amount for each day of the non-citizen's
detention;
. provides for the extinguishment of all outstanding detention debt for
non-citizens who are in immigration detention, or persons who have
been in immigration detention and liable third parties at the time of
commencement of the legislation;
. ensures that the immigration detention costs a person or third party
will be liable for under Division 14 of Part 2 of the Migration Act
are clearly specified in section 262 of the Migration Act by enabling
the Minister to make a legislative instrument determining the daily
amount for keeping and maintaining a person in immigration detention
at a specified place in a specified period;
. clarifies that the cost of keeping a non-citizen in Australia in
Subdivision B and C of Division 4 of Part 2 of the Migration Act does
not include the cost of immigration detention; and
. ensures that the regulations can no longer prescribe sponsorship
undertakings or obligations that include paying the Commonwealth an
amount relating to the cost of a person's immigration detention. The
Bill also ensures that the element of undertakings or obligations made
by a sponsor prior to commencement, that relate to paying the
Commonwealth the costs of detaining a visa holder sponsored by the
sponsor, will cease to have effect.
The liability to pay the Commonwealth the costs of immigration detention
was first inserted into the Migration Act as Division 8A of Part 2
(Recovery of costs from certain persons) (now renumbered Division 14 of
Part 2) by the Migration Amendment Act (No.2) 1992 in relation to persons
who were convicted of an offence against a prescribed law in force in the
Commonwealth or a State or Territory, being a law relating to the control
of fishing (section 100B now renumbered section 262 of the Migration Act).
Section 262 of the Migration Act was subsequently amended by the Border
Protection Legislation Amendment Act 1999 to strengthen provisions relating
to people smuggling and the manner of dealing with persons engaged in that
smuggling activity. In this context, these are persons who are convicted
of engagement in people smuggling - offences against the Migration Act that
relate to the bringing of persons to Australia by boat in circumstances
where some (or all) of the persons on board did not have a valid visa.
Persons liable to pay the Commonwealth the costs of immigration detention
under Division 14 of Part 2 of the Migration Act could include a master,
owner, agent or charterer of the vessel.
The provisions in Division 10 of Part 2 of the Migration Act were inserted
by the Migration Reform Act 1992 to rationalise and extend the liability
imposed on non-citizens who were detained, removed or deported.
The original objective of the detention debt policy in Division 10 of Part
2 of the Migration Act was to minimise the costs to the Australian
community associated with the detention of unlawful non-citizens by
ensuring that all unlawful non-citizens bear primary responsibility for the
costs associated with their detention, deportation or removal. A second
objective of the policy was to require former detainees to repay their debt
to the Commonwealth (or make suitable arrangements for repayment) as a
condition for the grant of a visa for re-entry to Australia (provided for
in the Migration Regulations 1994).
The operation of the detention debt regime under Division 10 of Part 2 of
the Migration Act has been subject to several reviews, with concerns raised
as to the equity, recovery and cost-effectiveness of maintaining this
policy.
The 2006 Senate Legal and Constitutional Affairs Committee report
Administration and Operation of the Migration Act 1958 noted that "The
evidence clearly indicates that the imposition of detention costs is an
extremely harsh policy and one that is likely to cause significant hardship
to a large number of people. The imposition of a blanket policy without
regard to individual circumstances is inherently unreasonable and may be so
punitive in some cases as to effectively amount to a fine. The Committee
agrees that it is a serious injustice to charge people for the cost of
detention." The Committee recommended that the imposition of detention
debt be discontinued except in instances of abuse of process or where
applicants acted in bad faith.
In July 2007, the Commonwealth Ombudsman initiated an "own motion"
investigation into whether the Department's administrative processes and
procedures were appropriate and were applied reasonably and consistently
across the Department. The Ombudsman's report, Department of Immigration
and Citizenship: Administration of Detention Debt Waiver and Write-Off, was
published in April 2008. The Ombudsman found that while the Department was
administering the debt waiver and write-off of detention debt according to
legislative and policy requirements, there was scope for improvement. In
particular, the Ombudsman noted that the Department could "improve the
information it provides to people, timeliness and prioritisation in
processing cases, and the consistency and reasonableness of decisions on
debt waiver and write-off." The Ombudsman also found that the Department
should provide clear and consistent information about a person's options
and provide regular updates on the amount of their debt while in detention.
The Joint Standing Committee on Migration (JSCM) published its first report
of the Inquiry into Immigration Detention in Australia, Immigration
detention in Australia: A new beginning - Criteria for release from
detention, in December 2008. The JSCM noted that "there was consensus of
opinion condemning the policy as punitive and discriminatory" citing
concerns "regarding the impact of detention debt on ex-detainees, in
particular the burden on mental wellbeing, the ability to repay the debt,
and the restrictions a debt could place on options for returning to
Australia on a substantive visa." The Committee also acknowledged the
detrimental flow-on effect for families and dependants and the ability of
people to progress their lives following detention.
Noting that less than 2.5 per cent of the detention debt invoiced since
2004-05 had been recovered, with the vast majority of debts waived or
written off, the JSCM concluded that "The practice of applying detention
charges would not appear to provide any substantial revenue or contribute
in any way to offsetting the costs of the detention policy. Further, it is
likely that the administrative costs outweigh or are approximately equal to
debts recovered."
The JSCM recommended that "as a priority, the Australian Government
introduce legislation to repeal the liability of immigration detention
costs." The Committee further recommended that the Minister for Finance
and Deregulation immediately waive existing detention debts for all current
and former detainees, and make all reasonable efforts to advise existing
debtors of this decision. (Recommendation 18)
These reviews highlighted that the detention debt policy under Division 10
of Part 2 of the Migration Act was not meeting its stated objective of
minimising the costs to the Australian community associated with the
detention of unlawful non-citizens, was poorly administered, was operating
inequitably and adversely impacting on former detainees as they sought to
resettle in Australia.
The Bill will repeal provisions in Division 10 of Part 2 of the Migration
Act which relate to the liability of non-citizens detained in immigration
detention, including liable third parties, who are liable to pay the
Commonwealth the costs of their transport between a place where the non-
citizen is detained and another place within Australia and the daily
maintenance amount for each day of the non-citizen's detention.
Costs associated with removal or deportation of unlawful non-citizens under
Division 10 of Part 2 of the Migration Act will be left unchanged. The
policy in relation to removal costs provides a deterrent against non-
citizens electing to be removed from Australia to avoid payment of travel
costs. The costs involved are not normally of sufficient magnitude to make
repayment an unreasonable burden on the person removed or deported.
The Bill will retain provisions in Division 14 of Part 2 of the Migration
Act in relation to convicted illegal foreign fishers and convicted people
smugglers, imposing a liability on these persons for detention and
transport costs while in immigration detention. Section 262 in Division 14
of Part 2 of the Migration Act will be amended to enable the Minister to
make a legislative instrument determining the daily amount for keeping and
maintaining a person in immigration detention at a specified place in a
specified period.
The amendments to Divisions 10 and 14 of Part 2 of the Migration Act will
mean that detention debt regime will be prospectively abolished for all
classes of detainees other than those identified under section 262 of the
Migration Act, being convicted illegal foreign fishers and convicted people
smugglers. These provisions are being retained in response to the serious
nature of the offences covered by section 262 of the Migration Act and in
recognition of the need for a significant deterrent to apply to these
offences.
While the Government has in place a suite of measures aimed at creating
deterrence to fishers conducting illegal fishing activity, the high rate of
recidivism among masters and crew involved in illegal foreign fishing - 29
per cent in 2008/09 financial year to the end of January 2009, following
rates of 12 per cent and 17 per cent in 2006-07 and 2007-08 respectively -
calls for a range of measure to support deterrence.
The retention of detention debt arrangements for convicted people smugglers
will similarly strengthen the Government's operational and national
security response to people smuggling, supporting the integrity of
Australia's border security regime against the criminal elements usually
behind the smuggling of people into Australia.
The Bill will provide for the extinguishment of all outstanding detention
debt for non-citizens who are in immigration detention, or persons who have
been in immigration detention, and liable third parties at the time of
commencement of the legislation. The amendment to extinguish all
outstanding immigration detention debt is necessary to provide a one-off
blanket removal of a whole class of debts.
The extinguishment mechanism is more appropriate to use than either a
waiver or a write off of existing debts. A waiver approach would require
that consideration be given to the individual circumstances of each debt,
which would be administratively cumbersome; while a write-off approach is
not appropriate because even when a debt is written off, it is possible
that it may be reinstated and pursued at a later date.
The extinguishment is not retrospective and therefore will only apply to
debts that exist at the commencement of the legislation. There will be no
refunds of any debts that have been paid in part or full before the
commencement of the legislation. However, existing frameworks, for example
under the Financial Management and Accountability Act 1997, will remain
available to allow the recovery of an amount where there has been a mistake
or illegality in a person's detention.
A new system for the management of detention debts incurred by convicted
illegal foreign fishers and convicted people smugglers will be established
by the Department to ensure that it operates as intended.
Finally, the Bill will make a number of consequential amendments that
clarify the operation of the legislation; firstly, to make clear that the
cost of keeping a non-citizen in Australia does not include the cost of
immigration detention; and secondly, to ensure that sponsorship
undertakings or obligations do not include paying the Commonwealth an
amount relating to the cost of a person's immigration detention and the
element of undertakings or obligations made prior to commencement that
relate to paying detention costs will cease to have effect.
financial impact statement
The financial impact of these amendments is low. The cost benefit of
detention debt recovery is only marginally effective. During 2006-2007 and
2007-2008 immigration detention debt raised was $54.3 million of which $1.8
million (or 3.3 per cent) was recovered. $48.2 million was written off by
the Department as uneconomical to pursue and $4 million was waived. For
the 2006-07 and 2007-08 financial years the balance of
$0.3 million is under active debt management.
The total of the detention debt to be extinguished by the Bill is the
amount owed to the Commonwealth including amounts written off and debts
under active debt management at the commencement of the Bill. Given that
such debt arrangements have been in place for many years, the
unavailability of comprehensive records over that time and payment of debt
by some persons, a precise total figure is not available. However, based
on the annual financial statements the estimated total of debt to be
extinguished is in the order of
$350 million (of which less than 5 per cent is recoverable and the majority
has already been written off). The expectation of recovery of this debt is
low.
Migration amendment (ABOLISHING DETENTION DEBT) BILL 2009
notes on individual clauses
Clause 1 Short title
Clause 1 provides that the short title by which this Act may be cited is
the Migration Amendment (Abolishing Detention Debt) Act 2009.
Clause 2 Commencement
Subclause 2(1) provides that each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 of the table.
Table item 1 provides that sections 1 to 3 of this Act and anything in this
Act not elsewhere covered by the table will commence on the day on which
this Act receives the Royal Assent.
Table item 2 provides that Part 1 of Schedule 1 to this Act commences on a
single day to be fixed by Proclamation. However, it also provides that if
any provision(s) do not commence within the period of 6 months beginning on
the day on which this Act receives the Royal Assent, they commence on the
first day after the end of that period.
Table item 3 provides that Part 2 of Schedule 1 to this Act commences at
the same time as the provisions covered by table item 2. However, if
Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act
2008 commences at or before that time, the provisions in Part 2 of Schedule
1 to this Act do not commence at all.
Table item 4 provides that items 30-32 of Part 3 of Schedule 1 to this Act
commences at the later of either: immediately after the commencement of
Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act
2008; and the start of the day on which the provision(s) covered by table
item 2 commence.
Table item 5 provides that item 33 of Part 3 to Schedule 1 to this Act
commence at the same time as the provision(s) covered by table item 4.
However, if Schedule 1 to the Migration Legislation Amendment (Worker
Protection) Act 2008 commences after the time the provision(s) covered by
table item 2 commence, the provision(s) do not commence at all.
An explanatory note is provided to assist the reader at the end of this
table. It specifies that the table relates only to the provisions of this
Act as originally passed by both Houses of Parliament and assented to. It
states clearly that the table will not be expanded to deal with provisions
inserted in this Act after it receives the Royal Assent.
Subclause 2(2) explains that column 3 of the table contains additional
information that is not part of this Act. It specifies that information in
this column may be added to or edited in any published version of this Act.
Clause 3 Schedule(s)
This clause provides that each Act specified in a Schedule to the Migration
Amendment (Abolishing Detention Debt) Act 2009 is amended or repealed as
set out in the applicable items in the Schedule concerned. In addition,
any other item in a Schedule to the Migration Amendment (Abolishing
Detention Debt) Act 2009 has effect according to its terms.
SCHEDULE 1 - Amendments
Part 1 - General Amendments
Migration Act 1958
Item 1 Section 145
This item inserts "(1)" before "If" in section 145 of the Migration Act
1958 (the "Migration Act"). This amendment is consequential to the
amendment in item 2, which inserts a new subsection in section 145.
Item 2 At the end of section 145
This item inserts new subsection 145(2) at the end of section 145 of the
Migration Act. New subsection 145(2) provides that for the purposes of
paragraph 145(1)(c), the cost of keeping the non-citizen in Australia does
not include the cost of immigration detention
(if any).
Section 145 prescribes the criteria the Attorney-General must consider in
giving a Commonwealth criminal justice entry certificate where the
temporary presence in Australia of a non-citizen who is outside Australia
is required for the relevant purposes. This certificate may be given if
the presence of a non-citizen is required for the administration of
criminal justice in relation to an offence against a law of the
Commonwealth. Under paragraph 145(1)(c), one of the considerations
required to allow a certificate to be given is that satisfactory
arrangements have been made to make sure that the person or organisation
who wants the non-citizen for the relevant purposes or the non-citizen or
both will meet the cost of bringing the non-citizen to, keeping the non-
citizen in, and removing the non-citizen from, Australia.
This item clarifies that in considering whether satisfactory arrangements
have been made, the cost of keeping the non-citizen in Australia does not
include the cost of immigration detention (if any). This item is a
consequential amendment to ensure it is clear on the face of the Migration
Act that the cost of keeping the non-citizen does not include the cost of
immigration detention, as liability for this cost to persons and liable
third parties are to be repealed from Division 10 of Part 2 of the
Migration Act.
Item 3 At the end of section 146
This item inserts new subsection 146(3) at the end of section 146 of the
Migration Act. New subsection 146(3) provides that for the purposes of
paragraph 146(1)(b), the cost of keeping the non-citizen in Australia does
not include the cost of immigration detention
(if any).
Section 146 prescribes the criteria an authorised official for a State must
consider in giving a State criminal justice entry certificate if the
temporary presence in Australia of a non-citizen who is outside Australia
is required for the relevant purposes. This certificate may be given if
the presence of a non-citizen is required for the administration of
criminal justice by the State in relation to an offence against a law of
the State. Under paragraph 146(1)(b), one of the considerations required
to allow a certificate to be given is that satisfactory arrangements have
been made to make sure that the person or organisation who wants the non-
citizen for those purposes or the non-citizen or both will meet the cost of
bringing the non-citizen to, keeping the non-citizen in, and removing the
non-citizen from, Australia.
This item clarifies that in considering whether satisfactory arrangements
have been made, the cost of keeping the non-citizen in Australia does not
include the cost of immigration detention (if any). This item is a
consequential amendment to ensure it is clear on the face of the Migration
Act that the cost of keeping the non-citizen does not include the cost of
immigration detention, as liability for this cost to persons and liable
third parties are to be repealed from Division 10 of Part 2 of the
Migration Act.
Item 4 Section 147
This item inserts "(1)" before "If" in section 147 of the Migration Act.
This amendment is consequential to the amendment in item 5, which inserts a
new subsection in section 147.
Item 5 At the end of section 147
This item inserts new subsection 147(2) at the end of section 147 of the
Migration Act. New subsection 147(2) provides that for the purposes of
paragraph 147(1)(c), the cost of keeping the non-citizen in Australia does
not include the cost of immigration detention
(if any).
Section 147 prescribes the criteria the Attorney-General must consider in
giving a Commonwealth criminal justice stay certificate where an unlawful
non-citizen is to be, or is likely to be, removed or deported and it is
considered the non-citizen should remain in Australia temporarily for
certain purposes. This certificate may be given if the stay of the removal
or deportation of a non-citizen is required for the administration of
criminal justice in relation to an offence against the law of the
Commonwealth. Under paragraph 147(1)(c), one of the considerations
required to allow a certificate to be given is that satisfactory
arrangements have been made to make sure that the person or organisation
who wants the non-citizen for the relevant purposes or the non-citizen or
both will meet the cost of keeping the non-citizen in Australia.
This item clarifies that in considering whether satisfactory arrangements
have been made the cost of keeping the non-citizen in Australia does not
include the cost of immigration detention (if any). This item is a
consequential amendment to ensure it is clear on the face of the Migration
Act that the cost of keeping the non-citizen does not include the cost of
immigration detention, as liability for this cost to persons and liable
third parties are to be repealed from Division 10 of Part 2 of the
Migration Act.
Item 6 Section 148
This item inserts "(1)" before "If" in section 148 of the Migration Act.
This amendment is consequential to item 7, which inserts a new subsection
in section 148.
Item 7 At the end of section 148
This item inserts new subsection 148(2) at the end of section 148 of the
Migration Act. New subsection 148(2) provides that for the purposes of
paragraph 148(1)(c), the cost of keeping the non-citizen in Australia does
not include the cost of immigration detention
(if any).
Section 148 prescribes the criteria an authorised official for a State must
consider in giving a State criminal justice stay certificate if the
temporary presence in Australia of a non-citizen who an unlawful non-
citizen is to be, or is likely to be, removed or deported is required for
the relevant purposes. This certificate may be given if the stay of a non-
citizen's removal or deportation is required for the administration of
criminal justice by the State in relation to an offence against a law of
the State. Under paragraph 148(1)(c), one of the considerations required
to allow a certificate to be given is that satisfactory arrangements have
been made to make sure that the person or organisation who wants the non-
citizen for those purposes or the non-citizen or both, will meet the cost
of keeping the non-citizen in Australia.
This item clarifies that in considering whether satisfactory arrangements
have been made the cost of keeping the non-citizen in Australia does not
include the cost of immigration detention (if any). This item is a
consequential amendment to ensure it is clear on the face of the Migration
Act that the cost of keeping the non-citizen does not include the cost of
immigration detention, as liability for this cost to persons and liable
third parties are to be repealed from Division 10 of Part 2 of the
Migration Act.
Item 8 Transitional - cessation of arrangements to the extent they
relate to detention debt
Transitional subitem 8(1) provides that an arrangement referred to in
paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Migration Act 1958;
and that existed immediately before the commencement of Part 1 of Schedule
1 to this Act; ceases to have effect on that commencement to the extent
that it was an arrangement to pay the Commonwealth an amount relating to
the cost of a person's immigration detention.
Transitional subitem 8(2) further provides that item 8 does not affect the
validity of a certificate given under section 145, 146, 147 or 148 of the
Migration Act.
This transitional is to ensure that an arrangement made before the
commencement of Part 1 of Schedule 1 to this Act will cease to have
effect to the extent that it was to pay the Commonwealth an amount relating
to the cost of a person's immigration detention, as liability for this cost
to persons and liable third parties are to be repealed from Division 10 of
Part 2 of the Migration Act and any outstanding immigration detention
liabilities will be extinguished.
Item 9 Subsection 151(3)
This item omits ", accommodation or immigration detention", and
substitutes "or accommodation (other than immigration detention)" in
subsection 151(3) of the
Migration Act.
Under subsection 151(3), if a court issues a criminal justice stay warrant
about a non-citizen, the applicant for the warrant is responsible for the
costs of any maintenance, accommodation or immigration detention of the non-
citizen while the warrant is in force.
The effect of this amendment is that the applicant for the warrant will not
be responsible for the costs of immigration detention (if any) of the non-
citizen while the warrant is in force. This item is a consequential
amendment to ensure it is clear on the face of the Migration Act that the
cost of keeping the non-citizen does not include the cost of immigration
detention, as liability for this cost to persons and liable third parties
are to be repealed from Division 10 of Part 2 of the Migration Act.
Item 10 Division 10 of Part 2 (heading)
This item repeals the heading of Division 10 of Part 2 "Division 10 - Costs
etc. of detention, removal and deportation" and substitutes "Division 10 -
Costs etc. of removal and deportation".
Division 10 of Part 2 of the Migration Act is currently concerned with
costs etc, of detention, removal and deportation. This item is a
consequential amendment to the repeal of provisions in Division 10 of Part
2 of the Migration Act in relation to the liability of
non-citizens and liable third parties for the costs of detention and
related costs (as set out in items 11 to 20 inclusive).
Item 11 Section 207 (definition of costs)
This item repeals the definition of "costs" in section 207 of the Migration
Act, and substitutes the definition of "costs" to mean the fares and other
costs to the Commonwealth of transporting a non-citizen and a custodian of
the non-citizen from Australia to the place outside Australia to which the
non-citizen is removed or deported.
The current definition of "costs" under section 207 includes certain costs
in relation to a non-citizen's immigration detention including the daily
maintenance amount for each day of the non-citizen's detention; or costs in
relation to a non-citizen's removal or deportation. The substituted
definition removes the costs in relation to a non-citizen's immigration
detention and substitutes a new definition retaining the costs in relation
to a non-citizens removal or deportation.
The effect of this amendment is that the new definition of "costs" will
only relate to the removal or deportation costs of a non-citizen.
Item 12 Section 207 (definition of daily maintenance amount)
This item repeals the definition of "daily maintenance amount" from section
207 of Division 10 of Part 2 of the Migration Act.
The definition of "daily maintenance amount" provides that in relation to a
non-citizen and a day and place, means the amount determined under section
208 as the daily maintenance amount for non-citizens detained at that place
in the period in which the day falls. This provision was to permit the
Minister to set a maintenance rate for a given place of detention rather
than in respect of a particular State or Territory and was to give the
Minister the flexibility to ensure realistic rates were applied to each
place of detention.
This item is a consequential amendment to the repeal of section 208 of the
Migration Act (as set out in item 13).
Item 13 Sections 208, 209 and 211
This item repeals sections 208, 209 and 211 from Division 10 of Part 2 of
the
Migration Act.
Section 208 provides that the Minister may determine in writing a daily
amount for the maintenance of a non-citizen detained at a specified place
in a specified period and limited the amount to be no more than the cost to
the Commonwealth of detaining a person at that place in that period.
Section 209 established, subject to section 211, the liability for a
non-citizen who is detained to pay the Commonwealth the costs of his or her
detention. Section 211 related to the recovery of costs in relation to the
detention of spouses and children and provided that where spouses are
detained at the same time they are jointly and severally liable for the
costs of detention. The section also provides that the spouses are liable
for the detention costs of their children.
The repeal of sections 208, 209 and 211 provides in effect that a non-
citizen who is detained will no longer be liable to pay the Commonwealth
the costs of his or her detention and spouses will no longer be jointly or
severally liable for their costs of detention or their children's detention
prospectively from the commencement of Part 1 of Schedule 1 to this Act.
Item 14 Subsection 213(1)
This item omits all the words after "the carriers" in subsection 213(1) of
the Migration Act and substitutes "of the non-citizen to pay the costs of
the non-citizen's removal, or deportation, from Australia should that
happen."
Subsection 213(1) of the Migration Act authorises the Secretary to give a
written notice to a carrier (controller of the vessel on which the non-
citizen was last brought to Australia) if the non-citizen who enters
Australia either does not comply with section 166 (immigration clearance)
(if required by that section to do so), or on complying, is detained under
section 189 as an unlawful non-citizen. The written notice may require
that carrier to pay the costs of the non-citizen's immigration detention if
the non-citizen is detained and the costs of the non-citizen's removal or
deportation if the non-citizen is removed or deported from Australia.
This amendment provides in effect that the Secretary will no longer be
authorised to give a carrier a written notice requiring a carrier to pay
the costs of the non-citizen's immigration detention (should that happen).
However, the Secretary may still give a written notice requiring a carrier
to pay the costs of the non-citizen's removal, or deportation from
Australia should that happen.
As a result of this item, the heading of section 213 is altered by omitting
"detention,".
Item 15 Section 214
This item omits "detention," from section 214 of the Migration Act.
Section 214 provides that if, under Division 10 of Part 2 of the Migration
Act, two or more persons are liable to pay the Commonwealth the costs of a
non-citizen's detention, removal or deportation they are jointly and
severally liable to pay those costs. The section ensures that liable
unlawful non-citizens and the carriers are each liable for the cost of
detaining the non-citizen.
The effect of this amendment is that liable non-citizens and carriers will
no longer be jointly and severally liable to pay the Commonwealth the costs
of a non-citizen's detention. Those unlawful non-citizens and carriers
will still each be liable for the costs of removal or deportation.
Item 16 Paragraphs 222(1)(a) and (b)
This item omits "209, 210, 211" and substitutes "210" in paragraphs
222(1)(a) and (b) of the Migration Act.
Section 222 provides that a court may make an order restraining any dealing
with property if the court is satisfied on application by the Secretary
that the non-citizen is liable, or may, on deportation or removal, become
liable, to pay the Commonwealth an amount under section 209, 210, 211 or
212 and there is a risk that the Commonwealth will not be able to recover
the amount the non-citizen is or becomes liable to pay if the court does
not make an order.
This amendment is consequential to the amendment in item 13 that repeals
sections 209 and 211 from Division 10 of Part 2 of the Migration Act and
ensures orders restraining certain non-citizens from disposing of property
will not be able to be sought in relation to liabilities to pay the
Commonwealth an amount under sections 209 or 211 of the Migration Act.
This provision will still apply where the non-citizen is liable to pay the
Commonwealth an amount under sections 210 or 212 of the Migration Act.
Item 17 Paragraphs 223(2)(b) and (c)
This item omits "209, 210, 211" and substitutes "210" from paragraphs
223(2)(b) and (c) of the Migration Act.
Section 223 provides that Secretary may give direction about valuables of
detained non-citizens where the Secretary is satisfied that the detainee is
an unlawful non-citizen or a deportee; the detainee is liable, or may, on
deportation or removal, become liable, to pay the Commonwealth an amount
under section 209, 210, 211 or 212 and if a notice is not given there is a
risk the Commonwealth will not be able to recover the amount the detainee
is, or becomes, liable to pay the Commonwealth.
This amendment is consequential to the amendment in item 13 that repeals
sections 209 and 211 from Division 10 of Part 2 of the Migration Act and
ensures directions about valuables of detained non-citizens cannot apply in
relation to liabilities to pay the Commonwealth an amount under sections
209 or 211 of the Migration Act. This provision will still apply where the
non-citizen is liable to pay the Commonwealth an amount under sections 210
or 212 of the Migration Act.
Item 18 Paragraphs 223(10)(b) and (c)
This item omits "209, 210, 211" and substitutes "210" from paragraphs
223(10)(b) and (c) of the Migration Act.
Subsection 223(10) provides that a court shall on application by the
Secretary confirm a notice served only if it is satisfied that the detainee
is an unlawful non-citizen or a deportee; that the detainee is liable, or
may, on deportation or removal, become liable, to pay the Commonwealth an
amount under section 209, 210, 211 or 212 and if the notice is not
confirmed there is a risk the Commonwealth will not be able to recover the
amount the detainee is, or becomes, liable to pay the Commonwealth.
This amendment is consequential to the amendment in item 13 that repeals
sections 209 and 211 from Division 10 of Part 2 of the Migration Act and
ensures a court cannot confirm a notice in relation to liabilities to pay
the Commonwealth an amount under sections 209 or 211 of the Migration Act.
This provision will still apply where the non-citizen is liable to pay the
Commonwealth an amount under sections 210 or 212 of the Migration Act.
Item 19 Paragraphs 224(3)(c) and (d)
This item omits "209, 210, 211" and substitutes "210" from paragraphs
224(3)(c) and (d) of the Migration Act.
Section 224 prescribes how the Secretary must deal with seized valuables.
Subsection 224(3) provides for when valuables must be returned to persons
from whom they were taken including under paragraphs 224(3)(c) and (d) if
the notified detainee is not, when the authorising notice is given, liable
to pay an amount to the Commonwealth under section 209, 210, 211, or 212,
and does not within 6 months become liable; or all amounts that are or
become liable are paid to the Commonwealth.
This amendment is consequential to the amendment in item 13 that repeals
sections 209 and 211 from Division 10 of Part 2 of the Migration Act. This
will in effect require the Secretary to arrange for valuables to be
returned as there will no longer be a liability to pay an amount to the
Commonwealth under the repealed sections. This provision will still apply
where the non-citizen is liable to pay the Commonwealth an amount under
sections 210 or 212 of the Migration Act.
Item 20 Subsections 224(4) and (5)
This item omits "209, 210, 211" and substitutes "210" from subsections
224(4) and (5) of the Migration Act.
Section 224 prescribes how the Secretary must deal with seized valuables.
Subsection 224(4) provides that when the Secretary takes possession of
valuables as the notified detainee is liable under sections 209, 210, 211
or 212 to pay an amount to the Commonwealth, he or she must (unless
required to arrange the return of valuables), apply the valuables toward
the payment of the amount owed to the Commonwealth and return any surplus
to the person from whom the valuables were taken.
This amendment is consequential to the amendment in item 13 that repeals
sections 209 and 211 from Division 10 of Part 2 of the Migration Act. This
will in effect only allow the Secretary to apply the valuables towards the
payment of the amount owed to the Commonwealth in relation to the amount
under sections 210 or 212 of the Migration Act, and no longer to an amount
previously owed under sections 209 or 211.
Item 21 Section 262
This item inserts "(1)" before "A" in section 262 in the Migration Act.
This amendment is consequential to item 23, which inserts new subsections
262(2) and (3).
Item 22 Paragraph 262(c)
This item omits "a fair amount" and substitutes "the amount applicable to
the person under subsection (2)" in paragraph 262(c) of the Migration Act.
Section 262 creates a liability for certain persons and third parties to
the Commonwealth for the cost of keeping, maintaining and removing persons
convicted of an offence against the Migration Act (an offence in Division
12 of Part 2 of the Migration Act relating to bringing unauthorised
arrivals into Australia) and a prescribed law in force in the Commonwealth
or in a State or Territory, being a law relating to the control of fishing.
Paragraph 262(c) of the Migration Act provides that the liability to the
Commonwealth for the cost of keeping and maintaining a person while the
person is in immigration detention is a "fair amount".
This item makes an amendment to paragraph 262(c) of the Migration Act to
ensure that the amount a person or third party will be liable for may be
clearly determined by the Minister in a legislative instrument rather than
being subjectively determined as a
"fair amount" of the cost of keeping an maintaining a person in immigration
detention.
The effect of the amendment is that:
. a person who is in immigration detention because of subsection 250(2)
of the Migration Act and while in immigration detention is convicted
of an offence against the Migration Act (an offence in Division 12 of
Part 2 of the Migration Act in relation to bringing unauthorised
arrivals into Australia) or against a prescribed law in force in the
Commonwealth or in a State or Territory relating to the control of
fishing; and
. the master, owner, agent and charterer of the vessel on which the
person travelled to Australia;
are jointly and severally liable to pay the Commonwealth under new
paragraph 262(1)(c) the amount applicable to the person under new
subsection 262(2) provided for in item 23 below.
Although this Act abolishes detention debt under Division 10 of Part 2 of
the Migration Act, section 262 of the Migration Act which creates a
liability in part for immigration detention, is being retained because the
nature of these offences and the high rate of recidivism from among masters
and crew involved in illegal foreign fishing and offences relating to the
bringing of unauthorised arrivals into Australia, calls for a significant
deterrent.
Item 23 At the end of section 262
This item adds new subsections 262(2) and (3) at the end of section 262 of
the
Migration Act.
New subsection 262(2) creates a mechanism (by legislative instrument) for
determining a daily amount for the keeping and maintaining of a person in
immigration detention at a specified place in a specified period. New
subsection 262(3) clarifies that for the purposes of new subsection 262(2),
an amount determined is to be no more than the cost to the Commonwealth of
detaining a person at that place in that period.
This amendment inserts the mechanism into section 262 of the Migration Act
for determining the daily amount of maintaining a person in immigration
detention for which a person or third party may be liable. This mechanism
has been taken from section 208 of the Migration Act that is repealed by
item 13.
Item 24 Subsection 474(4) (table item 1)
This item omits "detention," from table item 1 in subsection 474(4) of the
Migration Act.
Section 474 provides that certain decisions under the Migration Act are
final. Subsection 474(4) provides for decisions under a provision that are
not privative clause decisions. A privative clause decision is a decision
of an administrative character made, proposed to be made, or required to be
made, as the case may be, under the Migration Act or a regulation or other
instrument made under the Migration Act (whether in the exercise of a
discretion or not), other than a decision referred to in subsection (4) or
(5).
This amendment is consequential to item 14 that amends section 213 to
provide in effect that the Secretary will no longer be authorised to give a
carrier a written notice requiring a carrier to pay the costs of the non-
citizen's immigration detention (should that happen). Therefore, this
amendment omits "detention" from the listed subject matter of section 213
in the cross reference in table item 1 in subsection 474(4) of the
Migration Act.
Item 25 Extinguishment of outstanding detention debts
This item provides for the extinguishment of outstanding detention debts.
Subitem (1) provides that an immigration detention liability that existed
before the commencement of this Part under one or more of section 209, 211,
262 or 264, or subsection 151(3) or 213(3) of the Migration Act; an
undertaking or obligation prescribed by regulations made for the purposes
of subsection 140H(1) of the Migration Act; an arrangement referred to in
paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Migration Act; or any
other instrument; ceases on the commencement of Part 1.
Subitem (2) inserts the definition of "immigration detention liability" for
item 25. The phrase "immigration detention liability" in item 25 means a
liability to the extent that it was a liability to pay the Commonwealth an
amount relating to the cost of a person's immigration detention, or a non-
citizen's detention under the Migration Act.
The effect of this amendment is that immigration detention liability will
cease on the commencement of Part 1. The amendment is not retrospective
and as such no refunds for immigration detention or a non-citizen's
detention under the Migration Act that has been paid at the time of
commencement of Part 1 will be made.
Note 1 clarifies that the liability ceases to be recoverable as a debt.
The Commonwealth will no longer be able to recover the debt.
Note 2 further clarifies that, on the commencement of Part 1, the liability
ceases even if the Commonwealth had previously written it off. The effect
of notes 1 and 2 is to clarify that the liability will cease to be
recoverable as a debt and also the liability will cease even if the
Commonwealth had previously written off the debt.
Note 3 clarifies that item 25 does not apply to a liability to the extent
that a person had already discharged it. This clarifies that the
amendments do not apply to extinguish any liabilities that have already
been discharged. The amendments do not provide for any refunds in full or
in part for any payment of immigration detention liability that has already
been made. Any payment already received by the time of commencement of
Part 1 in relation to detention liability will be retained by the
Commonwealth.
Existing frameworks will continue to be available to allow for the recovery
of an amount where there has been a mistake or illegality because of which
an amount for immigration detention costs has been paid. For example, if
after extinguishment of a person's debt under this item, it is found that
the person was unlawfully detained, any immigration detention debt paid in
relation to the unlawful detention may be recoverable through legal action,
settlement, the Compensation for Detriment caused by Defective
Administration Scheme or act of grace payments through section 33 of the
Financial Management and Accountability Act 1997. This may also extend to
third parties who were liable and previously paid for the costs in relation
to immigration detention and is no different from remedies currently
available.
Finally, note 4 clarifies that item 25 does not cease a person's liability
under section 262 of the Migration Act, to pay the costs of immigration
detention for detention happening after the commencement of Part 1. This
provides that although any previous debts in relation to detention costs
will be extinguished on commencement of item 25, this will not affect a
person's liability for any costs that happen after the commencement of Part
1.
Part 2 - Amendments relating to sponsorship undertakings
Migration Act 1958
Note
This note explains that Part 2 of Schedule 1 to this Act does not commence
if Schedule 1 to the Migration Legislation Amendment (Worker Protection)
Act 2008
(the "Worker Protection Act") commences before (or at the same time as)
Part 1 of Schedule 1 to this Act. Further, if the Worker Protection Act
commences before or at the same time as Part 1 of Schedule 1 to this Act,
the corresponding amendments in Part 3 of Schedule 1 to this Act will
commence instead.
Currently, the Migration Act, pursuant to section 140H, has a sponsorship
undertaking regime whereby the regulations may require an applicant for
approval as a sponsor of a person for a visa to make prescribed
undertakings. Paragraph (b) of the note to subsection 140H(1) provides
that the kinds of undertakings that might be set out in the regulations
might include an undertaking to pay the Commonwealth the costs of locating,
detaining and removing from Australia a visa holder sponsored by the
sponsor.
Schedules 1 and 2 to the Worker Protection Act that is to commence by
proclamation or by operation of law on the first day after the end of 9
months from the Royal Assent
(18 December 2008) provide the sponsorship undertaking regime will be
replaced with a sponsorship obligation regime. Some undertakings will
however be grandfathered under the new scheme.
Part 2 of Schedule 1 to this Act amends the Migration Act in relation to
sponsorship undertakings, and Part 3 of Schedule 1 to this Act provides for
transitional arrangements for any undertakings that remain after the
commencement of Schedule 1 to the Worker Protection Act and the new
sponsorship obligations regime. The effect of Parts 2 and 3 of Schedule 1
to this Act will be that regulations made for the purposes of section 140H
of the Migration Act will not be able to prescribe an undertaking or
obligation to pay the cost of a person's immigration detention and
sponsorship undertakings or sponsorship obligations will cease to be in
effect to the extent that they relate to a sponsor paying the Commonwealth
costs of detention of a visa holder sponsored by the approved sponsor.
Item 26 Subsection 140H(1) (paragraph (b) of the note)
This item omits ", detaining" from paragraph (b) of the note in subsection
140H(1) of the Migration Act.
Subsection 140H(1) provides that the regulations may require an applicant
for approval as a sponsor of a person for a visa to make prescribed
undertakings. Paragraph (b) of the note to subsection 140H(1) of the
Migration Act, which sets out some examples of the kinds of undertakings
that might be set out in the regulations states that one of the examples
might be to pay the Commonwealth the costs of locating, detaining and
removing from Australia a visa holder sponsored by the sponsor.
The purpose of this amendment is to remove any uncertainty created by the
note and ensure that the regulations may not set out an undertaking
relating to the payment of the cost of immigration detention to the
Commonwealth.
Item 27 At the end of section 140H
This item adds new subsection 140H(5) at the end of section 140H of the
Migration Act.
Section 140H of the Migration Act provides for a sponsorship undertaking
regime whereby the regulations may require an applicant for approval as a
sponsor of a person for a visa to make prescribed undertakings. Paragraph
(b) of the note to subsection 140H(1) of the Migration Act, which sets out
some examples of the kinds of undertakings that might be set out in the
regulations states that one of the examples might be to pay the
Commonwealth the costs of locating, detaining and removing from Australia a
visa holder sponsored by the sponsor.
This amendment adds new subsection 140H(5), which states regulations made
for the purposes of subsection 140H(1) cannot prescribe an undertaking to
pay the cost of a person's immigration detention. The purpose of this
provision is to ensure that regulations cannot be made under subsection
140H(1) requiring an applicant for approval as a sponsor of a person for a
visa to make an undertaking in relation to paying the cost of a person's
immigration detention.
Item 28 Subsection 140I(4)
This item omits "and detaining" from subsection 140I(4) of the Migration
Act.
Subsection 140I(4) of the Migration Act provides that if a person (the
sponsor) makes an undertaking in relation to the costs of the Commonwealth
in locating and detaining another person, the undertaking is not
enforceable against the sponsor to the extent that the amount which the
sponsor has undertaken to pay in relation to those costs exceeds a limit
prescribed in the regulations, as in force when the undertaking is made.
This amendment is consequential to the amendments made in items 26 and 27
above. The amendments in these items are to ensure that regulations cannot
be made under subsection 140H(1) of the Migration Act requiring an
applicant for approval as a sponsor of a person for a visa to make an
undertaking in relation to detention cost. This amendment ensures that
subsection 140I(4) only relates to the enforceability of an undertaking in
relation to the costs to the Commonwealth in locating another person and
not that of their immigration detention.
Item 29 Transitional - cessation of undertakings to the extent that
they relate to detention debt
This item provides that an undertaking prescribed by regulations made for
the purposes of subsection 140H(1) of the Migration Act; and that existed
immediately before the commencement of Part 2 of Schedule 1 to this Act;
ceases to have effect on that commencement to the extent that it was an
undertaking to pay the Commonwealth an amount relating to the cost of a
person's immigration detention.
The purpose of this item is to cease sponsorship undertakings that existed
immediately before the commencement of Part 2 of Schedule 1 to this Act to
the extent that they relate to paying the Commonwealth an amount that
relates to the cost of a person's immigration detention.
If Part 2 of Schedule 1 to this Act does not commence before Schedule 1 to
the Worker Protection Act commences, Part 3 of Schedule 1 to this Act will
instead amend the Migration Act after the Worker Protection Act commences
in relation to the sponsorship obligation regime which replaces the
sponsorship undertaking regime.
Part 3 - Amendments relating to sponsorship obligations
Migration Act 1958
Item 30 Subsection 140H(1) (paragraph (b) of the note)
This item omits ", detaining" from paragraph (b) of the note in subsection
140H(1) of the Migration Act.
This item (along with Part 3 of Schedule 1 to this Act) operates in
relation to the sponsorship obligation regime which replaces the
sponsorship undertaking regime on the commencement of Schedule 1 to the
Worker Protection Act.
After the commencement of Schedule 1 to the Worker Protection Act new
subsection 140H(1) will provide that a person who is or was an approved
sponsor must satisfy the sponsorship obligations prescribed by the
regulations. Paragraph (b) of the note to new subsection 140H(1) provides
that an example of the kind of sponsorship obligations that might be
prescribed by the regulations includes an obligation to pay the
Commonwealth costs which may include locating, detaining and removing from
Australia a visa holder sponsored by the approved sponsor.
This item amends paragraph (b) of the note to new subsection 140H(1) to
remove any uncertainty created by the note and ensures the regulations may
not prescribe an obligation relating to the payment of the costs of
immigration detention to the Commonwealth.
Item 31 At the end of section 140H
This item adds new subsection 140H(7) at the end of section 140H of the
Migration Act.
New section 140H of the Migration Act will provide that a person who is or
was an approved sponsor must satisfy the sponsorship obligations prescribed
by the regulations.
This amendment adds subsection 140H(7) at the end of new section 140H,
which provides that the regulations cannot prescribe, as a sponsorship
obligation, an obligation to pay the Commonwealth an amount relating to the
cost of a person's immigration detention. The purpose of this provision is
to ensure that regulations made under new section 140H cannot prescribe, as
a sponsorship obligation, an obligation to pay the Commonwealth an amount
relating to the cost of a person's immigration detention.
Item 32 Subsection 140J(1)(example)
This item omits "and detaining" from the example in new subsection 140J(1)
of the Migration Act.
New subsection 140J(1) provides that if an amount is payable to the
Commonwealth by a person who is or was an approved sponsor in relation to a
sponsorship obligation, the person is not liable to pay more than the
lesser of:
. if a limit is prescribed by the regulations - that limit; and
. the actual costs incurred by the Commonwealth.
The note to subsection 140J(1) provides the example that, if the
Commonwealth incurs costs in locating and detaining a person, the maximum
amount that a person who is or was an approved sponsor is liable to pay to
the Commonwealth is the lesser of the total amount of those costs or an
amount prescribed in the regulations (if a limit is prescribed in the
regulations).
The purpose of this consequential amendment is to remove any uncertainty
created by the example and ensure that a person who is or was an approved
sponsor is not liable to pay the Commonwealth the costs of detaining a visa
holder sponsored by the sponsor.
Item 33 Transitional - cessation of undertakings to the extent they
relate to detention debt
This item provides that an undertaking prescribed by regulations made for
the purposes of subsection 140H(1) of the Migration Act; and that continued
to have effect on the commencement of Schedule 1 to the Worker Protection
Act because of Part 2 of that Schedule; and that existed immediately before
the commencement of Part 3 of Schedule 1 to this Act; ceases to have effect
on the commencement of Part 3 of Schedule 1 to this Act to the extent that
it was an undertaking to pay the Commonwealth an amount relating to the
cost of a person's immigration detention.
The purpose of this item is to cease sponsorship undertakings that existed
immediately before the commencement of Part 3 of Schedule 1 to this Act to
the extent that they relate to paying the Commonwealth an amount that
relates to the cost of a person's immigration detention.
Note
This note explains that item 33 does not commence if Schedule 1 to the
Worker Protection Act commences after Part 1 of Schedule 1 to this Act. If
that happens, any sponsorship undertakings to pay the costs of immigration
detention will have already ceased because of Part 2 of Schedule 1 to this
Act.