Migration Amendment (Abolishing Detention Debt) Act 2009

Administered by Department of Home Affairs

Legislation au C2009A00085 In force Act

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Migration Amendment (Abolishing Detention Debt) Act 2009

 

No. 85, 2009

 

 

 

 

 

An Act to amend the law relating to migration, and for other purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Amendments

Part 1—General amendments

Migration Act 1958

Part 2—Amendments relating to sponsorship undertakings

Migration Act 1958

Part 3—Amendments relating to sponsorship obligations

Migration Act 1958

 

 

 

Migration Amendment (Abolishing Detention Debt) Act 2009

No. 85, 2009

 

 

 

An Act to amend the law relating to migration, and for other purposes

[Assented to 18 September 2009]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Migration Amendment (Abolishing Detention Debt) Act 2009.

2  Commencement

 (1) 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. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

18 September 2009

2.  Schedule 1, Part 1

A single day to be fixed by Proclamation.

However, if any of the 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.

9 November 2009
(see F2009L04033)

3.  Schedule 1, Part 2

At the same time as the provision(s) 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 provision(s) do not commence at all.

Does not commence

4.  Schedule 1, items 30 to 32

The later of:

(a) immediately after the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008; and

(b) the start of the day on which the provision(s) covered by table item 2 commence.

9 November 2009
(paragraph (b) applies)

5.  Schedule 1, item 33

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.

9 November 2009

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendments

Part 1—General amendments

Migration Act 1958

1  Section 145

Before “If”, insert “(1)”.

2  At the end of section 145

Add:

 (2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).

3  At the end of section 146

Add:

 (3) For the purposes of paragraph (1)(b), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).

4  Section 147

Before “If”, insert “(1)”.

5  At the end of section 147

Add:

 (2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).

6  Section 148

Before “If”, insert “(1)”.

7  At the end of section 148

Add:

 (2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).

8  Transitional—cessation of arrangements to the extent that they relate to detention debt

(1) An arrangement:

 (a) referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Migration Act 1958; and

 (b) that existed immediately before the commencement of this Part;

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.

(2) This item does not affect the validity of a certificate given under section 145, 146, 147 or 148 of that Act.

9  Subsection 151(3)

Omit “, accommodation or immigration detention”, substitute “or accommodation (other than immigration detention)”.

10  Division 10 of Part 2 (heading)

Repeal the heading, substitute:

Division 10—Costs etc. of removal and deportation

11  Section 207 (definition of costs)

Repeal the definition, substitute:

costs means the fares and other costs to the Commonwealth of transporting:

 (a) a non‑citizen; and

 (b) a custodian of the non‑citizen;

from Australia to the place outside Australia to which the non‑citizen is removed or deported.

12  Section 207 (definition of daily maintenance amount)

Repeal the definition.

13  Sections 208, 209 and 211

Repeal the sections.

14  Subsection 213(1)

Omit all the words after “the carriers”, substitute “of the non‑citizen to pay the costs of the non‑citizen’s removal, or deportation, from Australia should that happen.”.

Note: The heading to section 213 is altered by omitting “detention,”.

15  Section 214

Omit “detention,”.

16  Paragraphs 222(1)(a) and (b)

Omit “209, 210, 211”, substitute “210”.

17  Paragraphs 223(2)(b) and (c)

Omit “209, 210, 211”, substitute “210”.

18  Paragraphs 223(10)(b) and (c)

Omit “209, 210, 211”, substitute “210”.

19  Paragraphs 224(3)(c) and (d)

Omit “209, 210, 211”, substitute “210”.

20  Subsections 224(4) and (5)

Omit “209, 210, 211”, substitute “210”.

21  Section 262

Before “A”, insert “(1)”.

22  Paragraph 262(c)

Omit “a fair amount”, substitute “the amount applicable to the person under subsection (2)”.

23  At the end of section 262

Add:

 (2) The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.

 (3) An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.

24  Subsection 474(4) (table item 1)

Omit “detention,”.

25  Extinguishment of outstanding detention debts

(1) An immigration detention liability that existed under one or more of the following immediately before the commencement of this Part:

 (a) section 209, 211, 262 or 264, or subsection 151(3) or 213(3), of the Migration Act 1958;

 (b) an undertaking or obligation prescribed by regulations made for the purposes of subsection 140H(1) of that Act;

 (c) an arrangement referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of that Act;

 (d) any other instrument;

ceases on the commencement of this Part.

(2) In this item:

immigration detention liability means a liability to the extent that it was a liability to pay the Commonwealth an amount relating to the cost of:

 (a) a person’s immigration detention; or

 (b) a non‑citizen’s detention under the Migration Act 1958.

Note 1: The liability ceases to be recoverable as a debt.

Note 2: The liability ceases even if the Commonwealth had previously written it off.

Note 3: This item does not apply to a liability to the extent that a person had already discharged it.

Note 4: This item does not cease a person’s liability, under section 262 of that Act, to pay the costs of immigration detention for detention happening after the commencement of this Part.


Part 2—Amendments relating to sponsorship undertakings

Migration Act 1958

Note: This Part does not commence if Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 commences before (or at the same time as) Part 1 to this Schedule. If that happens, the corresponding amendments in Part 3 commence instead.

26  Subsection 140H(1) (paragraph (b) of the note)

Omit “, detaining”.

27  At the end of section 140H

Add:

 (5) Regulations made for the purposes of subsection (1) cannot prescribe an undertaking to pay the cost of a person’s immigration detention.

28  Subsection 140I(4)

Omit “and detaining”.

29  Transitional—cessation of undertakings to the extent that they relate to detention debt

An undertaking:

 (a) prescribed by regulations made for the purposes of subsection 140H(1) of the Migration Act 1958; and

 (b) that existed immediately before the commencement of this Part;

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.


Part 3—Amendments relating to sponsorship obligations

Migration Act 1958

30  Subsection 140H(1) (paragraph (b) of the note)

Omit “, detaining”.

31  At the end of section 140H

Add:

 (7) 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.

32  Subsection 140J(1) (example)

Omit “and detaining”.

33  Transitional—cessation of undertakings to the extent that they relate to detention debt

An undertaking:

 (a) prescribed by regulations made for the purposes of subsection 140H(1) of the Migration Act 1958; and

 (b) that continued to have effect on the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 because of Part 2 of that Schedule; and

 (c) that existed immediately before the commencement of this Part;

ceases to have effect on the commencement of this Part to the extent that it was an undertaking to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.

Note: This item does not commence if Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 commences after Part 1 to this Schedule. If that happens, any sponsorship undertakings to pay the costs of immigration detention will have already ceased because of Part 2 of this Schedule.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 17 June 2009

Senate on 11 August 2009]

(118/09)

 

Overview

The Migration Amendment (Abolishing Detention Debt) Act 2009, enacted by the Parliament of Australia and assented to on 18 September 2009, aims to amend the law relating to migration, specifically addressing the problem of immigration detention debts. This legislation seeks to eliminate the financial burden on non-citizens for their detention costs by abolishing the concept of detention debt. The Act's provisions include the cessation of existing arrangements and liabilities related to immigration detention costs, effective from the date of commencement. The Act also provides mechanisms for the Minister to determine daily detention costs while ensuring they do not exceed the actual cost to the Commonwealth. The policy objective of this Act, as outlined in the Minister's second reading speech, is to address the issue of detention debts by ensuring that non-citizens are not required to pay for their immigration detention. This reform aims to relieve non-citizens from financial liabilities associated with their detention, thereby aligning the legal framework with the policy of abolishing detention debt.

Scope and Application

The Migration Amendment (Abolishing Detention Debt) Act 2009 applies to the Commonwealth of Australia and its territories, and it amends the Migration Act 1958. The Act targets the cessation of any immigration detention debt, meaning that the cost of keeping a non-citizen in Australia no longer includes the cost of their immigration detention. This applies to specific sections and subsections of the Migration Act 1958, including sections 145, 146, 147, 148, 207, 262, and 474, among others. The Act also modifies the definition of costs related to the removal or deportation of a non-citizen, specifically omitting any reference to immigration detention. The amendments extinguish outstanding detention debts that existed immediately before the commencement of the Act, effectively cancelling any liability to pay the Commonwealth for the cost of immigration detention. Notably, the Act does not affect the validity of certificates issued under certain sections of the Migration Act 1958. The Act’s provisions can be extended or restricted through subordinate instruments, such as legislative instruments determining daily detention costs.

Key Provisions

The Migration Amendment (Abolishing Detention Debt) Act 2009 primarily amends the Migration Act 1958 to eliminate the liability for immigration detention costs, which previously could be charged to non-citizens or their sponsors. Section 145, 146, 147, and 148 of the Migration Act 1958 are amended to explicitly exclude the cost of immigration detention from the costs of keeping a non-citizen in Australia. Additionally, arrangements and undertakings that existed prior to the Act's commencement and related to the payment of immigration detention costs are rendered ineffective to the extent they pertain to such costs. The Act also modifies the definitions and scope of costs associated with the removal and deportation of non-citizens, excluding immigration detention costs. The Act imposes specific obligations on parties involved in the migration process. It requires sponsors to refrain from entering into undertakings or obligations to pay the costs of immigration detention, as these are no longer enforceable. The regulations made under the Migration Act 1958 are also amended to prohibit the prescription of any such undertakings or obligations. This means that sponsors are no longer liable for the costs related to the detention of non-citizens, which was previously a possible requirement. Breaches of the provisions in this Act could lead to civil or administrative penalties. For instance, any continued enforcement of immigration detention costs after the Act's provisions take effect would be unlawful. The Act does not explicitly outline criminal penalties for violations, but non-compliance with amended provisions could result in legal challenges or administrative actions under the Migration Act 1958. The maximum penalties for such breaches are not specified within this Act but would typically be determined under the general provisions of the Migration Act 1958, which may include fines and other sanctions.

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Immigration & Refugee Law
Instrument
Act
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Commencement Provisions
Repeal & Amendment
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.