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Migration Amendment (Abolishing Detention Debt) Bill 2009

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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 repea l 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

 

1.       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

 

2.        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.

 

3.       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.

 

4.       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.

 

5.       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.

 

6.       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.

 

7.       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.

 

8.       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.

 

9.       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)

 

10.   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

 

11.   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

 

12.    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).

 

13.   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.

 

14.   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

 

15.    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).

 

16.   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.

 

17.   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

 

18.    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

 

19.    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).

 

20.   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. 

 

21.   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

 

22.    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

 

23.    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).

 

24.   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. 

 

25.   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

 

26.    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. 

 

27.   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.

 

28.   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)

 

29.    This item omits “, accommodation or immigration detention”, and substitutes “or accommodation (other than immigration detention)” in subsection 151(3) of the

Migration Act.

 

30.   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. 

 

31.   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)

 

32.   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”.

 

33.   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 )

 

34.   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.

 

35.   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.

 

36.   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)

 

37.   This item repeals the definition of “daily maintenance amount” from section 207 of Division 10 of Part 2 of the Migration Act.

 

38.   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.

 

39.   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

 

40.   This item repeals sections 208, 209 and 211 from Division 10 of Part 2 of the

Migration Act. 

 

41.   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.

 

42.   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)

 

43.   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.”

 

44.   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.

 

45.   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.

46.   As a result of this item, the heading of section 213 is altered by omitting “ detention, ”.

 

Item 15           Section 214

 

47.   This item omits “detention,” from section 214 of the Migration Act.

 

48.   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.

 

49.   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)

 

50.    This item omits “209, 210, 211” and substitutes “210” in paragraphs 222(1)(a) and (b) of the Migration Act. 

 

51.   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.

 

52.   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)

 

53.   This item omits “209, 210, 211” and substitutes “210” from paragraphs 223(2)(b) and (c) of the Migration Act.

 

54.   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.

 

 

 

55.   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)

 

56.   This item omits “209, 210, 211” and substitutes “210” from paragraphs 223(10)(b) and (c) of the Migration Act.

 

57.   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.

 

58.   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)

 

59.   This item omits “209, 210, 211” and substitutes “210” from paragraphs 224(3)(c) and (d) of the Migration Act. 

 

60.   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.

 

61.   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)

 

62.   This item omits “209, 210, 211” and substitutes “210” from subsections 224(4) and (5) of the Migration Act. 

 

 

 

63.   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.

 

64.   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

 

65.   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)

 

66.   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.

 

67.   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”.

 

68.   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.

 

69.   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.

 

 

 

70.   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

 

71.   This item adds new subsections 262(2) and (3) at the end of section 262 of the

Migration Act.

 

72.    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.

 

73.   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)

 

74.   This item omits “detention,” from table item 1 in subsection 474(4) of the Migration Act.

 

75.   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).

 

76.   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

 

77.   This item provides for the extinguishment of outstanding detention debts.

 

78.   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.

 

79.   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.

 

80.   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.

 

81.   Note 1 clarifies that the liability ceases to be recoverable as a debt.  The Commonwealth will no longer be able to recover the debt.

 

82.   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.

 

83.   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.

 

84.   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.

 

85.   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   

 

86.   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.

 

87.   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. 

 

88.   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.

 

89.   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)

 

90.   This item omits “, detaining” from paragraph (b) of the note in subsection 140H(1) of the Migration Act.

 

91.   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.

 

92.   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

 

93.   This item adds new subsection 140H(5) at the end of section 140H of the Migration Act.

 

94.   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.

 

95.   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)

 

96.   This item omits “and detaining” from subsection 140I(4) of the Migration Act.

 

97.    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. 

 

98.   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

 

99.   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. 

 

100.           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.

 

101.           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)

 

102.           This item omits “, detaining” from paragraph (b) of the note in subsection 140H(1) of the Migration Act.

 

103.           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.

 

104.           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.

 

105.           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

 

106.           This item adds new subsection 140H(7) at the end of section 140H of the

Migration Act.

 

107.           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.

 

108.           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)

 

109.           This item omits “and detaining” from the example in new subsection 140J(1) of the Migration Act. 

 

110.           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.

 

111.           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).

 

112.           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

 

113.           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. 

 

114.           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

 

115.           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.