Commonwealth: Migration Amendment (Abolishing Detention Debt) Act 2009 (Cth)

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. 9 November 2009 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. (see F2009L04033) 3. Schedule 1, Part 2 At the same time as the provision(s) covered by table item 2. Does not commence 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. 4. Schedule 1, items 30 to 32 The later of: 9 November 2009 (a) immediately after the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008; and (paragraph (b) applies) (b) the start of the day on which the provision(s) covered by table item 2 commence. 5. Schedule 1, item 33 At the same time as the provision(s) covered by table item 4. 9 November 2009 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. 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)