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
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.