EXPLANATORY STATEMENT
Migration Act 1958
Migration (Daily Maintenance Amount for Persons in Detention) Determination 2026
The instrument Migration (Daily Maintenance Amount for Persons in Detention) Determination 2026 (departmental reference LIN 26/026) is made under subsection 262(2) of the Migration Act 1958 (the Migration Act).
The instrument also repeals the Migration (Daily Maintenance Amount for Persons in Detention) Determination (LIN 24/017) 2024 (LIN 24/017) in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the Acts Interpretation Act). That subsection of the Acts Interpretation Act provides that a power to make a legislative instrument includes a power to amend or repeal an instrument in the same manner, and subject to the same conditions, as the power to make an instrument.
The instrument commences on 1 July 2026. It is a legislative instrument for the purpose of the Legislation Act 2003 (the Legislation Act).
Legislative authority
LIN 26/026 is made under subsection 262(2) of the Migration Act. Section 262 of the Migration Act provides for a liability for certain persons and third parties to the Commonwealth for the cost of keeping, maintaining and removing a person from Australia, where the person is a convicted people smuggler or has been convicted of an offence relating to the control of fishing (illegal foreign fishers).
Subsection 262(2) of the Act provides that 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, for the purposes of paragraph 262(1)(c) of the Act. Subsection 262(3) of the Act also relevantly provides that an amount determined under subsection 262(2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.
Purpose
The purpose of LIN 26/026 is to determine that the daily amount for the keeping and maintaining of a person in immigration detention is $702.31. This amount reflects the minimum cost to the Commonwealth for keeping and maintaining a person in immigration detention. The new daily amount of $702.31 is an increase from the previous amount of $538.79 that was determined in repealed LIN 24/017.
LIN 26/026 specifies the relevant period for the purposes of subsection 262(2) of the Migration Act as being the period between 1 July 2026 and 30 June 2028 (inclusive).
LIN 26/026 specifies each place approved by the Minister in writing under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Act as a place for the purposes of subsection 262(2). It also specifies each place that is a detention centre established and maintained under subsection 273(1) of the Act that is mentioned in the table under paragraph 6(2)(b) of the instrument. The list of detention centres in LIN 26/026 is the same as in the preceding (repealed) instrument LIN 24/017.
Consultation
Section 17 of the Legislation Act requires the rule-maker to be satisfied that any consultation that is considered to be appropriate and reasonably practicable to be undertaken has been. The increase in the daily maintenance amount, determined under subsection 262(2) of the Migration Act for the purposes of section 262, reflects the current minimum cost to the Commonwealth, as a daily amount, for keeping and maintaining a person in immigration detention. The Department of Home Affairs did not undertake consultation with affected individuals, as the instrument operates to increase the daily amount consistent with the statutory framework, and does not otherwise substantially alter existing arrangements in relation to places specified under subsection 262(2) for the purposes of subsection 262(1). The new daily amount was determined in line with long-standing methodology and is consistent with the requirements under subsection 262(3).
Parliamentary scrutiny etc.
The Migration Amendment (Abolishing Detention Debt) Act 2009 (the 2009 Act) amended the Migration Act to remove the liability for the cost of their detention for all detainees apart from convicted people smugglers and illegal foreign fishers. Under section 262 of the Act, the individual and the master, owner, agent and charterer of the vessel on which the individual travelled to Australia are jointly and severally liable for the costs of the individual’s immigration detention. The liability for immigration detention costs is not a criminal penalty under the Migration Act. It relates to the period a person covered by subsection 262(1) of the Act is in immigration detention, pending that person’s departure or removal from Australia as an unlawful non-citizen. Subsection 262(3) of the Act provides that the sum a person who is liable for in relation to their immigration detention cannot be more than the cost to the Commonwealth of detaining that person. This makes clear that the amount imposed under the Act can only be for the actual cost of immigration detention, and that it is not a punitive measure.
The instrument is exempt from disallowance under section 42 of the Legislation Act. This is because it is a legislative instrument made under Part 2 of the Migration Act, which is exempt from disallowance under paragraph (a) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. As the instrument is exempt from disallowance, a Statement of Compatibility of Human Rights is not required.
Further details of the instrument are set out in Attachment A.
The instrument was made by a delegate of the Minister in accordance with subsection 262(2) of the Migration Act.
Attachment A
Details of the Migration (Daily Maintenance Amount for Persons in Detention) Determination 2026
Section 1 Name
This section provides that the name of the instrument is the Migration (Daily Maintenance Amount for Persons in Detention) Determination 2026.
Section 2 Commencement
This section provides that the instrument commences on 1 July 2026.
Section 3 Authority
This section provides that the instrument is made under subsection 262(2) of the Migration Act.
Section 4 Definitions
This section provides for certain definitions in the instrument, including the expression ‘Act’ with reference to the Migration Act.
The note under the heading in this section provides that a number of expressions used in the instrument are defined in the Act, including ‘detention centre’ and ‘immigration detention’.
Section 5 Schedule
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms. This section operates with item 1 of Schedule 1 to repeal the Migration (Daily Maintenance Amount for Persons in Detention) Determination (LIN 24/017) 2024.
Section 6 Daily maintenance amount etc
Section 6 of the instrument, under subsection 262(2) of the Migration Act, determines the daily amount and specifies the places and period for the purposes of section 262 of the Act.
Paragraph 6(1)(a) of the instrument provides that the daily amount is determined to be $702.31. The Department of Home Affairs has calculated the daily amount based on the direct costs to the Commonwealth of keeping and maintaining a person in immigration detention. The costs include facility-based corporate overheads, catering, cleaning, facilities management, security and escorting services, visitor management, health services, and activities and programs. The Chief Finance Officer of the Department has approved this amount to apply to each place specified under subsection 6(2) of the instrument.
The amount determined under paragraph 6(1)(a) of the instrument represents an increase in the daily maintenance amount when compared with the amount of $538.79 determined under paragraph 6(1)(a) of the repealed Migration (Daily Maintenance Amount for Persons in Detention) Determination (LIN 24/017) 2024.
The daily amount specified does not include indirect, variable, or associated departmental costs. Therefore, the specified amount is no more than the actual cost to the Commonwealth of detaining a person in a specified place during the specified period, as required by subsection 262(3) of the Migration Act. Subsection 262(3) of the Act provides that an amount determined under subsection 262(2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.
Paragraph 6(1)(b) provides that the period between 1 July 2026 and 30 June 2028 is specified for the purposes of subsection 262(1) of the Act (with the specified period inclusive of those two days). The Department considers this period to be appropriate, and in line with the approach to previous instruments made under subsection 262(2), also provides a suitable timeframe to review and update its costs. As an example, if a person is detained over a period where both repealed LIN 24/017 and the current instrument LIN 26/026 apply, the required payment will be calculated based on the rates specified for those respective periods. This means that certain persons will be liable to pay $538.79 for each day that person was detained before 1 July 2026 and $702.31 for each day that person is detained on or after 1 July 2026.
Subsection 6(2) of the instrument provides that (consistent with repealed LIN 24/017) the following places are specified:
each place approved by the Minister in writing under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Act;
each place that is a detention centre established and maintained under subsection 273(1) of the Act mentioned in an item under paragraph 6(2)(b) of the instrument:
- Adelaide Immigration Detention Centre;
- Brisbane Immigration Detention Centre;
- Melbourne Immigration Detention Centre;
- North West Point (Christmas Island) Immigration Detention Centre;
- Perth Immigration Detention Centre;
- Villawood Immigration Detention Centre;
- Yongah Hill Immigration Detention Centre.
Schedule 1 Repeal
Together with section 5 of the instrument, item 1 of Schedule 1 operates to repeal the Migration (Daily Maintenance Amount for Persons in Detention) Determination (LIN 24/017) 2024.