Explanatory Statement
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Amendment (Abolishing Detention Debt) Act 2009
Proclamation
Subsection 2(1) of the Migration Amendment (Abolishing Detention Debt) Act 2009 (the Act) provides that Part 1 of Schedule 1 to the Act commences on a day to be fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within six months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that period. The Act received the Royal Assent on 18 September 2009.
The Proclamation fixed 9 November 2009 as the day on which Part 1 of Schedule 1 to the Act commenced. Subsection 2(1) of the Act provided that the remainder of Schedule 1 to the Act commenced at the same time as Part 1.
Schedule 1 to the Act amends the Migration Act 1958 to remove the liability of a non-citizen who is detained in immigration detention to pay the Commonwealth the costs of their transport between a place where they are detained and another place within Australia, and the daily maintenance amount for each day of their detention. Existing detention debt was extinguished on commencement. Under the amendments, persons convicted of illegal foreign fishing or people smuggling offences will be prospectively liable for the cost of their detention.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Amendment (Abolishing Detention Debt) Act 2009, enacted by the Parliament of Australia, was introduced to address a perceived gap in the financial responsibility of non-citizens detained in immigration facilities. The Act received Royal Assent on 18 September 2009, and a Proclamation was issued on 9 November 2009, fixing the commencement date for the Act's provisions. The policy objective of this Act is to remove the liability of non-citizens to pay for their transport and daily maintenance costs during detention, while ensuring that individuals convicted of illegal foreign fishing or people smuggling offences bear the prospective cost of their detention. This change aims to address the financial burden previously placed on detained non-citizens and to enforce accountability for those involved in illegal activities.
Scope and Application
The Migration Amendment (Abolishing Detention Debt) Act 2009 applies to non-citizens who are detained in immigration detention in Australia, specifically exempting them from the liability to pay the Commonwealth for their transport between places of detention and for the daily maintenance costs associated with their detention. This Act amends the Migration Act 1958 to remove these financial obligations for detainees, effective from the date of proclamation, which was set to be 9 November 2009. Additionally, the Act extinguishes any existing detention debt from the date of its commencement. However, it is important to note that individuals convicted of illegal foreign fishing or people smuggling offences remain prospectively liable for the costs of their detention under the amended provisions. The jurisdictional reach of the Act is federal, given that it amends Commonwealth legislation, and it does not explicitly extend or restrict its application through subordinate instruments as per the provided explanatory statement.
Key Provisions
The Migration Amendment (Abolishing Detention Debt) Act 2009 introduces significant changes to the way detention debts are managed for non-citizens in Australia. Under section 2 of the Act, Part 1 of Schedule 1, which commences on a day to be fixed by Proclamation, removes the liability of non-citizens detained in immigration detention to pay for their transport and daily maintenance costs. This change means that any existing detention debt is extinguished upon the commencement of the Act. Importantly, section 3 of the Act specifies that the remainder of Schedule 1, including the provisions regarding prospective liability for detention costs for individuals convicted of illegal foreign fishing or people smuggling offences, also commences on the same day as Part 1.
The obligations imposed by this Act are primarily directed towards the Commonwealth and the non-citizens detained in immigration facilities. The Act, through its amendments to the Migration Act 1958, removes the financial burden of detention costs from non-citizens who are not convicted of illegal foreign fishing or people smuggling offences. This legislative shift means that the Commonwealth assumes responsibility for these costs, ensuring that detained individuals are no longer required to settle any debts incurred during their detention. However, individuals convicted of the specified offences remain liable for their detention costs under the new regime established by the Act.
Failure to comply with the provisions of the Migration Amendment (Abolishing Detention Debt) Act 2009 may result in civil or criminal consequences. Although the Act itself does not explicitly outline penalties for non-compliance, the underlying Migration Act 1958 provides a framework for enforcement. Individuals who are supposed to be liable for detention costs under the new regime but fail to pay may face legal action. The penalties for such offences, as stipulated in the Migration Act 1958, can include substantial fines and, in severe cases, imprisonment. The exact penalties would depend on the specific circumstances and the severity of the breach.