Migration Amendment (Abolishing Detention Debt) Bill 2009 - Second Reading Speech
Wednesday 18 November 2008
The Migration Amendment (Abolishing Detention Debt) Bill 2009 amends the Migration Act 1958 (the ‘Act’) to remove the liability for detention and related costs for certain persons, and liable third parties, and extinguishes all outstanding immigration detention debts.
The Rudd Government is committed to establishing a fairer and more humane and effective system of immigration detention. This Bill represents the first legislative step in the Government’s reform of immigration detention. Further reforms, to give legislative effect to the Government’s New Directions in Detention policy announced in July last year, will be introduced in coming months.
The Government considers that fair and effective immigration detention policies and strong border security measures are not incompatible. This Bill reflects that conviction: striking an appropriate balance by abolishing an ineffective system that penalises former detainees with enormous debt burdens, while ensuring that liability for detention costs remains a deterrent in relation to convicted illegal foreign fishers and people smugglers.
This Bill contains four key measures to reform the system of detention debt.
The Bill will, firstly, repeal provisions in Division 10 of Part 2 of the Act in relation to the liability of a non-citizen who is detained in immigration detention, and third parties in certain circumstances to pay the Commonwealth the costs of a detainee’s transport between a place where the non-citizen is detained and another place within Australia as well as the daily maintenance amount for each day of the non-citizen’s detention. Liability for costs associated with the removal or deportation of unlawful non-citizens under Division 10 of Part 2 to the Act will remain unchanged.
Secondly, this Bill will retain and clarify provisions in Division 14 of Part 2 of the Act which relate to the liability of convicted illegal foreign fishers and convicted people smugglers for detention and transport costs. These provisions are being retained in response to the serious nature of the offences covered by section 262 and in recognition of the need for a significant deterrent to apply to these offences.
Together, these amendments will mean that the detention debt regime will be prospectively abolished for all classes of detainees other than convicted illegal foreign fishers and convicted people smugglers.
Thirdly, the Bill will provide for the extinguishment of all outstanding detention debt for non-citizens who are in immigration detention, or persons who have been in immigration detention, and liable third parties at the time of commencement of the legislation.
Finally, the Bill will make consequential amendments to:
- clarify in Subdivision B and C of Division 4 of Part 2 to the Act (that relate to Criminal Justice Certificates) that the cost of keeping a non-citizen in Australia under these provisions does not include the cost of immigration detention; and
- ensure that the regulations can no longer prescribe sponsorship undertakings or obligations that include paying the Commonwealth an amount relating to the cost of a person’s immigration detention. The Bill also ensures that the element of undertakings or obligations made by a sponsor prior to commencement of this Bill that relate to paying detention costs of a visa holder sponsored by the sponsor will cease to have effect.
In pursuing these amendments the Government has considered the findings and recommendations of three recent reviews of the detention debt regime under Division 10 of Part 2 of the Act.
In 2006 the Senate Legal and Constitutional Affairs Committee, in its report Administration and Operation of the Migration Act 1958, noted that, ‘The evidence clearly indicates that the imposition of detention costs is an extremely harsh policy and one that is likely to cause significant hardship to a large number of people. The imposition of a blanket policy without regard to individual circumstances is inherently unreasonable and may be so punitive in some cases as to effectively amount to a fine.’ The committee agreed that it was a serious injustice to charge people for the cost of detention.
In an own motion report published in April 2008, the Commonwealth Ombudsman examined the Department of Immigration and Citizenship’s administrative processes and procedures in relation to the detention debt policy.
The report, Department of Immigration and Citizenship: Administration of Detention Debt Waiver and Write-Off, noted that while the department was administering the debt waiver and write-off of detention debt according to legislative and policy requirements, there was scope for improvement. In particular, the Ombudsman noted that the department could improve the information it provides to people, timeliness and prioritisation in processing cases, and the consistency and reasonableness of decisions on debt waiver and write off.
Although the Ombudsman’s report focused on the administration of the policy, the report also commented upon the burden of detention debt, noting that, ‘Complaints to the Ombudsman’s office indicate that the size of some debts cause stress, anxiety and financial hardship to many individuals who are now living lawfully in the Australian community, as well as for those who have left Australia.’
In introducing this legislation the Government has accepted the unanimous recommendation of the Joint Standing Committee on Migration (JSCM) that the Australian Government, as a priority, introduce legislation to repeal the liability for immigration detention costs, and immediately waive all existing detention debts for all current and former detainees.
In the first of three reports in its current inquiry, Immigration Detention in Australia: a new beginning, released in December last year, the JSCM commented on the administrative inefficiencies of the policy. Noting that less than 2.5 per cent of the detention debt invoiced since 2004-05 had been recovered, with the vast majority of debts incurred under this system waived or written off, the JSCM concluded that, ‘The practice of applying detention charges would not appear to provide any substantial revenue or contribute in any way to offsetting the costs of the detention policy. Further, it is likely that the administrative costs outweigh or are approximately equal to debts recovered.’
The JSCM focused on the adverse impact of detention debt on those who either remained in Australia or had connections to the country, citing concerns about ‘the burden on mental wellbeing, the ability to repay the debt, and the restrictions a debt could place on options for returning to Australia on a substantive visa’.
Like the Commonwealth Ombudsman, the JSCM noted concerns raised with the Committee that ‘detention debts are a source of substantial anxiety to ex-detainees, and may impede the capacity of the ex-detainees to establish a productive life, either in Australia or elsewhere’.
The JSCM’s report made particular reference to the adverse impact detention debt often had on the mental health of former detainees, noting that the imposition of a significant debt often prolonged or exacerbated mental health problems relating to immigration detention, particularly where there was a history of torture and trauma.
The JSCM referred to the limited earning capacity of many people on their release from detention, and the financial hardship that substantial debts caused. The committee also acknowledged the detrimental flow-on effect for families and dependants in these situations.
Turning to each of the measures in this Bill.
Part 1 of Schedule 1 to the Bill will provide for the general amendments to the Act. Part 1 will repeal provisions in Division 10 of Part 2 of the Act in relation to the liability of detainees and third parties for the cost of detention and the costs of transporting a detainee between places of detention.
As demonstrated most recently by the JSCM, the original objective behind the detention debt policy – to minimise the costs to the Australian community of the detention, maintenance and removal or deportation of unlawful non-citizens by ensuring all unlawful non-citizens bore primary responsibility for these costs – is simply not being met.
While the cost of immigration detention is significant, debt recovery under the existing system is so low as to be virtually ineffective. The majority of those persons with an immigration detention debt have their debts written off as uneconomical to pursue, while persons without an accurate forwarding address or with ongoing non-response are also not pursued by DIAC for practical and administrative reasons. A small proportion of debts are waived, where special circumstances are established and the Commonwealth considers that it has a moral, rather than a legal, obligation to extinguish the debt.
Recent figures provide an apt demonstration of the ineffectiveness of this policy. During 2006-07 and 2007-08, immigration detention debt raised was $54.3 million of which $1.8 million (or 3.3 per cent) was recovered. $48.2 million was written off by the department as uneconomical to pursue and $4 million was waived. For the 2006-07 and 2007-08 financial years, the balance of $0.3 million is under active debt management.
Making immigration detainees primarily responsible for the costs associated with their detention, has not, in any significant way, contributed to minimising costs to the Australian community. And in the meantime, the department is required to meet the high cost of administering a debt that it is largely unable to collect.
These debts are not insignificant. The current daily maintenance amount of $125.40 can see a person in immigration detention for a year incur a debt of more than $45 000. As the JSCM report detailed, detention debts in the hundreds of thousands of dollars are not uncommon.
These debt have little effect on those with sufficient funds to repay, and no effect on those (the majority) who cannot readily be contacted. It is only the minority with a genuine desire to seek legal stay in Australia who are directly affected.
Departmental operational policy provides that detainees, once repatriated, must repay their debt in full or make satisfactory arrangements for repayment, before they can meet eligibility criteria for a visa. Since I have been minister, I have seen the requirement act as a barrier to a person returning to Australia (even when partners or family members are Australian citizens), impede the transition from a temporary to permanent visa (as in the case of spouses), and prevent former detainees from sponsoring and being reunited with their family members (even, on occasions, when the former detainee has been found to be a refugee). As such, this requirement inequitably affects those who seek to remain and settle in Australia, while the majority of people released from immigration detention are removed from Australia and are therefore under no obligation to repay their debts to the Commonwealth.
It is significant that no other country with immigration detention facilities holds people liable for their detention costs.
In terminating the detention debt regime under Division 10, this Bill not only prospectively abolishes a harsh, inequitable and punitive system which adversely impacts on the ability of former detainees to settle in Australia, but also brings to an end a system that has been demonstrated to be ineffective and inefficient. For many seeking to start a new life in Australia, this Bill removes an onerous burden of debt that is selectively harsh in its effects on the most vulnerable.
It is important to note that liability for costs associated with the removal or deportation of unlawful non-citizens under Division 10 of Part 2 of the Act will remain unchanged. People deported or removed from Australia will continue to be subject to the costs incurred. This Government recognises that the policy in relation to removal costs provides a deterrent against non-citizens electing to be removed from Australia to avoid payment of travel costs. The Government has no intention of encouraging visitors to this country to become destitute and then rely on the Australian Government – and Australian taxpayers – to pay for their return.
Part 1 of Schedule 1 to the Bill will also clarify the operation of provisions under Division 14 of Part 2 of the Act.
The Australian Government recognises that there are cases where the deterrent effect of detention debt is appropriate: persons convicted of illegal foreign fishing or of people smuggling offences under the Act.
The Australian Government remains very concerned with illegal, unreported and unregulated fishing in our northern waters and the abhorrent and despicable trade of people smuggling. Unlike many people who enter Australia, convicted illegal foreign fishers and people smugglers have no interest or intent to live in or contribute to Australian society. In fact, the actions resulting in their convictions are in direct conflict with the interests of the Australian community.
The nature of these offences calls for a significant deterrent. While the Government maintains rigorous ongoing surveillance and enforcement measures to tackle illegal foreign fishers and people smugglers, we recognise that we must use all measures available to preserve the integrity and security of our borders.
For these reasons, this Bill will retain and clarify the provisions in Division 14 of Part 2 of the Act, to continue the liability of convicted illegal foreign fishers and convicted people smugglers for the costs of their detention.
The retention of detention debt liabilities for persons convicted of illegal foreign fishing and people smuggling will act as an adjunct to penalties already in place, strengthen the Government’s operational and national security response to illegal foreign fishing and people smuggling, and support the integrity of Australia’s border security regime.
Section 262 in Division 14 of Part 2 of the Act will be amended to enable 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. This measure will ensure that the detention costs payable by convicted illegal foreign fishers and convicted people smugglers and liable third parties are clearly specified.
A new system for the management of detention debts incurred by convicted illegal foreign fishers and convicted people smugglers under amended Division 14 of Part 2 of the Act will be established by DIAC to ensure that it operates as intended.
Part 1 of Schedule 1 to the Bill will also provide for the extinguishment of all outstanding debt for non-citizens who are in immigration detention, or persons who have been in immigration detention, and liable third parties, in relation to the costs of detention payable at the time of commencement of the Bill.
The Bill extinguishes all existing debts incurred under the detention debt regime. The amendment to extinguish all outstanding immigration detention debt is necessary to provide a one-off blanket removal of a whole class of debts. After discussions with the department of Finance and Deregulation it was determined that the extinguishment mechanism was more appropriate to use than either a waiver or a write off of existing debts. A waiver approach (as recommended by the JSCM) would require that consideration should be given to the individual circumstances of each debt, which would be administratively cumbersome; while a write-off approach is not appropriate because even when a debt is written off, it may be reinstated and pursued at a later date.
The total of the detention debt to be extinguished by this Bill is the amount owed to the Commonwealth at the time of commencement including amounts written off and debts under active debt management. Given that such debt arrangements have been in place for many years, the unavailability of comprehensive records over that time and payment of debt by some persons, a precise total figure is not available. However, based on the annual financial statements the estimated total of the debt to be extinguished is in order of $350 million of which, less than 5 percent is recoverable and the majority has been written off.
The extinguishment is not retrospective and therefore will only apply to debts that exist at the commencement of the legislation. There will be no refunds of any debts that have been paid in part or full before the commencement of the legislation. It is recognised that such payments were made in the discharge of a legal liability existing at the time of payment.
However, existing frameworks will continue to be available to allow for the recovery by an individual of an amount paid to the Commonwealth where there has been a mistake or illegality involved. For example, if it is found that a person was unlawfully detained, any immigration detention debt paid in relation to the unlawful detention may be recoverable through legal action, settlement, the Compensation for Detriment caused by Defective Administration Scheme or act of grace payments through section 33 of the Financial Management and Accountability Act 1997. This may also extend to third parties who were liable and previously paid for the costs in relation to immigration detention.
All former detainees currently under active debt management will be notified of the changes through individual letters to their last known address. General information about the extinguishment will also be provided to community groups and placed on the department's website.
By extinguishing existing debt for all detainees, this Bill will allow people to move on in their lives without the weight of detention debt holding them back.
Parts 2 and 3 of Schedule 1 to this Bill amend the Act to ensure that regulations made for the purposes of subsection 140H(1) of the Act cannot prescribe a sponsorship undertaking, or if the Migration Legislation Amendment (Worker Protection) Act 2008 has commenced, cannot prescribe a sponsorship obligation to pay the cost of a person’s immigration detention. These parts further provide that an undertaking prescribed by the Migration Regulations 1994 (the ‘Regulations’) made for the purposes of subsection 140H(1) of the Act (that relates to paying the Commonwealth an amount relating to the cost of a person’s immigration detention), will cease to have effect on the commencement of this Bill.
The Government expects that people who come to Australia enter and leave in accordance with their visa conditions. Immigration detention will continue to be used as an appropriate tool to manage compliance and the prompt removal of those who have no legal right to remain in Australia. In short, immigration detention will continue to support the orderly processing of migration to our country.
The Government considers that fair and effective immigration detention policies and strong border security measures are not incompatible. This legislation will strike an appropriate balance.
This Bill marks an important change in the treatment of persons who have been subject to immigration detention. I hope it will have the support of all members of this Parliament.
I commend the Bill to the chamber.
Last update: 11 February 2010 at 14:17 AEST