Amendments to the Migration Act in relation to the Migration Amendment (Abolishing Detention Debt) Act 2009
9 November 2009 Legislation Change
Client summary
From 9 November 2009 the Migration Act 1958 (the Act) is amended to:
- remove the liability for immigration detention and related costs for certain persons and liable third parties by amending section 207, 213 and repealing section 208, 209 and 211 of the Act;
- extinguish all outstanding immigration detention debt by ceasing immigration detention liability, that existed before 9 November 2009 under one or more of the following provisions:
- section 209, 211, 262 or 264 or subsection 151(3) or 213(3) of the Act, for non-citizens who are in immigration detention or persons who have been in immigration detention and liable third parties;
- an undertaking or obligation prescribed by regulations made under subsection 140H(1) of the Act;
- an arrangement referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Act; and
- any other instrument.
- allow the Minister to make a legislative instrument determining the daily amount for keeping and maintaining a person in immigration detention at a specified place, in a specified period under section 262 of the Act;
- ensures that regulations can no longer prescribe sponsorship undertakings or obligations that include paying the Commonwealth an amount relating to the costs of a person’s immigration detention; and
- clarify that the cost of keeping a non-citizen in Australia under sections 145, 146, 147 and 148 of the Act (relating to the giving of a Commonwealth criminal justice entry certificate or a State criminal justice entry certificate) does not include the cost of immigration detention.
Affected legislation
The following provisions of the Migration Act 1958 are amended:
- 140H(1), 140H, 140J(1), 145, 146, 147, 148, 151(3), 207, 208, 209, 211, 213(1), 214, 222(1)(a) and (b), 223(2)(b) and (c), 223(10)(b) and (c), 224(3)(c) and (d), 224(4) and (5), 262, and 474(4).
Additional information
The liability for costs associated with the removal or deportation of unlawful non-citizens (under Division 10, Part 2 of the Act) remains unchanged. Immigration detention debts in relation to the removal or deportation of unlawful non-citizens will not be extinguished.
Additionally, from 9 November 2009 newly convicted people smugglers, convicted illegal foreign fishers and liable third parties will be liable for the costs associated with their immigration detention under section 262 of the Act.
There will be no refund of payments that have been made to the Australian Government (whether in part or in full under these provisions) before 9 November 2009.
Transitional provisions
All affected immigration detention debts (as noted above) cease on 9 November 2009.
An arrangement referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Act that existed immediately before 9 November 2009 ceases to have effect to the extent that it was an arrangement to pay the Commonwealth an amount relating to the cost of a person’s immigration detention. This transitional does not affect the validity of a certificate given under section 145, 146, 147 or 148 of the Act.
Sponsorship undertakings or obligations also cease to have effect on 9 November 2009 to the extent that it was an undertaking to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
Forms
None.
Instructions
PAM3: PAM3 will be amended to reflect these changes.