EXPLANATORY STATEMENT
Migration Act 1958
Migration (Daily Maintenance Amount for Persons in Detention) Determination Instrument (LIN 20/037) 2020
(subsection 262(2))
- The instrument, LIN 20/037, is made under subsection 262(2) of the Migration Act 1958 (the Act).
- The instrument repeals Migration (LIN 18/022: Determination of Daily Maintenance Amounts for Persons in Detention) Instrument 2018 (LIN 18/022) (F2018L01196) made under subsection 262(2) of the Act in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). Subsection 33(3) of the AIA states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The instrument operates to determine the daily amount applicable to a person for the cost of keeping and maintaining the person in immigration detention at a specified place for a specified period. Subsection 262(3) of the Act requires the amount to be no more than the cost to the Commonwealth of detaining a person at that place for that period.
- The purpose of the instrument is to update the information contained in the previous instrument LIN 18/022, with the daily maintenance amount being specified as $456.23 for the period from the commencement date of the instrument to 30 June 2022 inclusive. The decrease in the daily maintenance amount is $32.88.
- The specified amount, approved by the Chief Finance Officer of the Department of Home Affairs, reflects the current minimum cost to the Commonwealth of keeping and maintaining a person in a place of immigration detention established under subsection 273(1) of the Act and in accordance with subparagraph (b)(i) of the definition of immigration detention in subsection 5(1) of the Act and all other places approved by the Minister in writing under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1) of the Act .
- The minimum cost was calculated based on the direct costs to the Commonwealth including but not limited to security and escorting services, catering, cleaning, facilities management, visitor management, facility based corporate overheads, and costs of health activities and programs. The calculated amount in the instrument 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, in accordance with the requirement in subsection 262(3) of the Act.
- The instrument also differs from LIN 18/022 in that it does not specify the Maribyrnong Immigration Detention Centre (MIDC) (Maidstone, VIC). The MIDC no longer operates as a detention facility, and was not accounted for in the calculations of the new amount.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was deemed unnecessary. The instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 25928).
- The maker of the instrument (Senior Executive Service, Band One, Australian Border Force) was appropriately delegated by Australian Border Force (Minister) Delegations and Authorisations 2018 (ABF (M) No. 1 of 2018), signed on 15 February 2019.
- Under paragraph (a) of item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, the instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
- The instrument commences on the day after it is registered on the Federal Register of Legislation.
Overview
The Migration (Daily Maintenance Amount for Persons in Detention) Determination Instrument (LIN 20/037) 2020, enacted under subsection 262(2) of the Migration Act 1958, was introduced to address the need for an updated determination of the daily maintenance amount for persons in immigration detention. The instrument replaces the previous Migration (LIN 18/022: Determination of Daily Maintenance Amounts for Persons in Detention) Instrument 2018, and its purpose is to set the daily maintenance amount for the cost of detaining individuals at specified places for a specified period, ensuring it does not exceed the Commonwealth's actual costs. This update, necessitated by a reduction in the daily maintenance amount to $456.23, reflects the current minimum cost to the Commonwealth, based on direct costs such as security, catering, and health programs, excluding indirect or variable costs. The instrument was made by the Senior Executive Service, Band One, Australian Border Force, who was appropriately delegated under the Australian Border Force (Minister) Delegations and Authorisations 2018.
Scope and Application
The Migration (Daily Maintenance Amount for Persons in Detention) Determination Instrument (LIN 20/037) 2020 is an instrument made under subsection 262(2) of the Migration Act 1958 to determine the daily maintenance amount applicable to the cost of keeping and maintaining a person in immigration detention. This amount is calculated to be no more than the cost to the Commonwealth of detaining a person in a specified place for a specified period, and in this instance, the amount is set at $456.23 for the period from the commencement date of the instrument until 30 June 2022. This instrument repeals the previous instrument, LIN 18/022, and updates the maintenance amount, reflecting the current minimum cost to the Commonwealth for the specified detention costs, which excludes indirect, variable, or associated departmental costs. The instrument applies to the Commonwealth and affects the conduct of detaining persons in immigration detention, ensuring the daily maintenance amount does not exceed the calculated cost. The instrument applies nationally across all detention facilities approved under the Migration Act 1958, excluding any facility not specified in the determination.
Key Provisions
The Migration (Daily Maintenance Amount for Persons in Detention) Determination Instrument (LIN 20/037) (section 2) is a legislative instrument that determines the daily maintenance amount for the cost of keeping and maintaining a person in immigration detention at a specified place for a specified period. It specifies that the daily maintenance amount is $456.23 for the period from the commencement date of the instrument to 30 June 2022 inclusive (subsection 2(2)). This amount is based on the minimum cost to the Commonwealth of detaining a person in immigration detention, including direct costs such as security, catering, cleaning, and health activities, but does not include indirect, variable, or associated departmental costs (subsection 2(3)). This instrument replaces the previous instrument, LIN 18/022, which had a higher daily maintenance amount (subsection 2(4)).
The Act imposes obligations on the parties or entities it governs by setting the maximum daily maintenance amount for the cost of detaining a person in immigration detention. The amount must be no more than the actual cost to the Commonwealth of detaining a person in a specified place during a specified period (subsection 262(3) of the Migration Act 1958). The instrument ensures that the daily maintenance amount is calculated based on the current minimum cost to the Commonwealth, reflecting the direct costs associated with detaining a person in immigration detention.
There are no explicit offences, penalties, or civil or criminal consequences stated for breach of the provisions in the instrument. However, the instrument is made under the authority of the Migration Act 1958, which includes provisions for penalties and enforcement mechanisms for breaches of the Act. The instrument itself does not specify any particular penalties or consequences for non-compliance, but any breach of the Migration Act 1958 may result in civil or criminal penalties as prescribed by the Act. The specific penalties for breaches of the Act would depend on the nature and severity of the breach, and would be subject to the relevant provisions of the Act.