EXPLANATORY STATEMENT
Migration Act 1958
MIGRATION (LIN 18/022: DETERMINATION OF DAILY MAINTENANCE AMOUNTS FOR PERSONS IN DETENTION) INSTRUMENT 2018
(Subsection 262(2))
- The instrument, LIN 18/022, is made under subsection 262(2) of the Migration Act 1958 (the Act).
- The instrument repeals IMMI 14/088, Determination of Daily Maintenance Amounts for Persons in Detention (IMMI 14/088) (F2014L01281) made under subsection 262(2) of the Act and 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 nominate the amount payable, on a daily basis, for keeping and maintaining a person in immigration detention at a specified place in a specified period.
- The purpose of the instrument is to specify an increased daily amount for the purpose of subsection 262(2) of the Act. The amount calculated is based on an average across all facilities based on the bandwidth aligned with the operational capacity of each facility with a daily rate of $489.11. The new rate has been approved by the Department of Home Affairs’ Chief Finance Officer to reflect the current cost of keeping and maintaining a person in immigration detention. The amount recoverable includes:
- the amount applicable to the person for the cost of keeping and maintaining the person while in immigration detention, as per paragraph 262(1)(c) of the Act;
- the cost of transporting the person and the cost of securing the person between the vessel to the place of immigration detention, as per paragraph 262(1)(d) of the Act;
- the cost of transporting the person and a person holding the person, between places of immigration detention, as per paragraph 262(1)(e) of the Act; and
- if the person is, or is to be, removed from Australia at the expense of the Commonwealth, the cost of that removal, including transporting a person holding the person, as per paragraph 262(1)(g) of the Act.
- The specified daily amount is to apply from the commencement of the instrument until 30 June 2019.
- Consultation was not undertaken before the instrument was made as the changes are considered to be minor or machinery in nature. The instrument does not substantially alter arrangements in place on 13 October 2015 under IMMI 14/088. In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was deemed not necessary.
- The Office of Best Practice Regulation (OBPR) have advised that a Regulatory Impact Statement is not required (OBPR Reference: 21690).
- The officer (Senior Executive Service, Band One, ABF Governance Branch) who made the instrument was delegated the powers required to make the instrument in Australian Border Force (Minister) Delegations and Authorisations 2018 (ABF (M) No. 1 of 2018).
- Under 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 registration on the Federal Register of Legislation.
Overview
The Migration (Lin 18/022: Determination of Daily Maintenance Amounts for Persons in Detention) Instrument 2018 is a legislative instrument made under the Migration Act 1958 to update the daily maintenance amount payable for keeping and maintaining a person in immigration detention. This instrument repeals the previous instrument, IMMI 14/088, and sets a new daily rate of $489.11, reflecting the current costs associated with detaining individuals. The instrument aims to address the financial obligations associated with immigration detention, including the costs of maintaining, transporting, and securing detainees, as well as any removal costs incurred by the Commonwealth. Enacted by the Australian Government under the authority of the Migration Act 1958, this instrument is designed to ensure that the financial provisions align with the operational costs of detention facilities. The instrument came into effect from the day after its registration on the Federal Register of Legislation and is exempt from disallowance.
Scope and Application
The Migration (LIN 18/022: Determination of Daily Maintenance Amounts for Persons in Detention) Instrument 2018, made under subsection 262(2) of the Migration Act 1958, serves to establish the daily rate payable for the upkeep of individuals in immigration detention, replacing the previous instrument IMMI 14/088. This instrument applies to all persons subject to immigration detention in Australia, and it is applicable across the entire Commonwealth jurisdiction. The instrument specifies an increased daily maintenance amount, currently set at $489.11, which is intended to cover the costs associated with the person's detention, transportation, and security, as well as removal from Australia if applicable. The instrument is effective from the date of its registration on the Federal Register of Legislation until 30 June 2019 and does not require a Regulatory Impact Statement as it has been deemed to be minor or machinery in nature. It does not substantially change the arrangements under the previous instrument and is exempt from disallowance, thereby not necessitating a Statement of Compatibility with Human Rights.
Key Provisions
The main operative sections of the Migration (LIN 18/022: Determination of Daily Maintenance Amounts for Persons in Detention) Instrument 2018 (LIN 18/022) specify the daily maintenance amount payable for keeping and maintaining a person in immigration detention, which has been set at $489.11 per day. This instrument (subsection 262(2)) operates to nominate this daily rate, applicable from its commencement until 30 June 2019, and supersedes the previous determination, IMMI 14/088 (subsection 33(3) of the Acts Interpretation Act 1901). The amount encompasses various costs, including those related to the person's detention, transport, and removal from Australia, as outlined in paragraphs 262(1)(c), (d), (e), and (g) of the Migration Act 1958.
The Act imposes several obligations on parties involved in immigration detention. The Australian Border Force, under the authority of the Department of Home Affairs’ Chief Finance Officer, is responsible for determining the daily maintenance amount based on the average costs across all detention facilities, ensuring it reflects the current cost of maintaining detainees. The new rate must be applied consistently across all detention facilities from the instrument's commencement until 30 June 2019. This includes covering the full range of expenses stipulated in the Act, such as the costs of detention, transportation, and removal. Furthermore, the instrument outlines that the new rate has been approved and is set to reflect the operational capacity of each facility.
There are no specific offences or penalties mentioned in the instrument itself; however, the underlying Migration Act 1958 does provide a framework for penalties and consequences for breaches. For instance, under section 230 of the Migration Act, unauthorised acts, such as failing to comply with detention-related provisions, can result in civil or criminal penalties. In the context of this instrument, non-compliance with the specified daily maintenance amount could lead to legal consequences under the broader Migration Act, including fines and imprisonment for serious breaches. The maximum penalties would depend on the nature and severity of the breach, as outlined in the broader legislative context provided by the Migration Act.