DETENTION SERVICES AGENCY (ESTABLISHMENT) ORDER

SUBSIDIARY LEGISLATION 595.45

DETENTION SERVICES AGENCY

(ESTABLISHMENT) ORDER

28th April, 2023

LEGAL NOTICE 31 of 2023.

The title of this order is the Detention Services Agency

(Establishment) Order.

In this order, unless the context otherwise requires

"Act" means the Public Administration Act;

"Agency" means the Detention Services Agency as

established by article 3;

"Agreement" means the agency performance agreement

as provided in article 5;

"Appointment Commission" means a Commission made

up of three (3) members appointed by the Minister, from among

public officers and from among persons who, in the opinion of

the Minister, have knowledge and experience in matters relating

to detained persons;

"Chief Executive Officer" shall have the same meaning

as assigned to it in article 4;

"Minister" means the Minister responsible for detention

services;

"officer" means an officer of a detention centre and

includes members of the Armed Forces of Malta, officers of the

Malta Police Force, prisons officers serving with the

Correctional Services Agency and officers of the detention

services;

"Permanent Secretary" means the Permanent Secretary

within the Ministry responsible for detention services;

"Principal Immigration Officer" shall have the same

meaning as assigned to it in article 3 of the Immigration Act.

(1)

There shall be established an Agency, to be known

as the Detention Services Agency.

(2)

The Agency shall be a body corporate having a distinct

legal personality and shall be capable of entering into contracts, of

employing personnel, of acquiring, holding and disposing of any kind

of property for the purpose of its operations and of suing and of being

sued and to which any function or operation of Government may be

assigned under this or any other law

Provided that and without prejudice to the provisions of

article 39 of the Act, the Minister shall be entitled to give directions in

writing and the Agency and its Chief Executive Officer shall be bound

to observe such directives.

(3)

The legal and judicial representation of the Agency shall

be vested with the Chief Executive Officer or his representative.

(4)

The Agency and its employees shall uphold and promote

the public service values and those specific to the role of the Agency.

(5)

The Agency shall be responsible for the confinement of

third country nationals who entered Malta irregularly or are irregularly

present in Malta and who have been issued with an order prescribing

their detention in terms of the Immigration Act or subsidiary legislation

thereunder or any other legislation providing for administrative

detention or confinement.

(1)

There shall be a Chief Executive Officer appointed

by the Prime Minister who shall have the overall responsibility for the

day-to-day running of the Agency.

(2)

The Chief Executive Officer shall report on a regular

basis to the Minister on the day-to-day running of the Agency and

related matters.

(3)

There shall be such number of Deputies to the Chief

Executive Officer of the Agency (hereinafter referred to as Deputies to

the Chief Executive Officer) as the Prime Minister may determine, from

time to time, by means of a Government notice published in the Gazette.

(4)

The Deputies to the Chief Executive Officer shall be

appointed by the Prime Minister from among public officers and from

among persons who in each case, in the opinion of the Prime Minister,

have knowledge and experience in matters relating to detention.

(5)

The Deputies to the Chief Executive Officer shall, under

the general direction of the Chief Executive Officer, have such

functions and powers as are conferred on the Chief Executive Officer

by virtue of this order and which are assigned to each of them by the

Chief Executive Officer. Any reference in this order to the Chief

Executive Officer shall be deemed to include also a reference to the

Deputies to the Chief Executive Officer in the exercise of any function

and power assigned to them by the Chief Executive Officer.

(1)

The Agency shall enter into an Agreement with

the Minister with a view of determining the funding of the Agency, the

targets it is expected to meet as well as the tasks to be addressed and

achieved.

(2)

The Agreement may cover one or more years and shall

be renewable in accordance with such directives and guidelines as the

Principal Permanent Secretary may issue governing the development

of an Agreement.

(1)

The Agency shall draw up yearly estimates for

each financial year and submit them for consideration of the Minister

in accordance with norms and practices established by the Minister

responsible for finance.

(2)

The Agency shall be paid by the Government out of the

Consolidated Fund such amounts as the House may from time to time

authorise to be appropriated to meet the cost of its operational and

capital expenditure identified in its financial business plan.

(3)

In the conduct of its affairs, the Agency may levy fees for

services rendered by it which shall as far as possible, be used for the

on-going upkeep and maintenance of the centres under its

responsibility.

(4)

The Minister may, after consultation with the Minister

responsible for finance give such directives with a view to applying

any excess of revenue over expenditure to the formation of reserve

funds to be used for the purposes of the Agency.

(5)

Without prejudice to the generality of the powers given

by the Minister in accordance with sub-article (4), any directive given

by the Minister may order the transfer to the Government, or the

application in such manner as may be specified in the directive, of any

part of the fees, rates and other payments levied in accordance with

sub-article (3) or any such excess as aforesaid.

(6)

Any funds of the Agency not immediately required to

meet expenditure may be invested in such manner as may be approved,

from time to time, by the Minister with the concurrence of the Minister

responsible for finance.

(1)

The Agency shall keep proper books of account

and other records in respect of its operations and shall prepare a

statement of accounts in respect of each financial year.

(2)

The said accounts shall be audited by auditors appointed

for this purpose by the Agency with the concurrence of the Minister

responsible for finance and the Minister

Provided that the Minister responsible for finance, may

after consultation with the Minister, require moreover that the books

and accounts of the Agency be audited or examined by the Auditor

General who shall for this purpose have the powers to carry out such

physical checking and any other certifications as he may deem

necessary.

(1)

The Agency shall, not later than six (6) weeks

after the end of each financial year, present to the Minister a report

dealing generally with the activities of the Agency during that

financial year and containing an audited statement of accounts

together with such information relating to the proceedings and

workings of the Agency to fulfil its functions and future plans.

(2)

The report mentioned in sub-article (1) shall be laid on

the Table of the House by the Minister not later than six (6) weeks

after its receipt, or where the said House is during the period not in

session, not later than the second week after the House resumes its

sittings.

(1)

Without prejudice to the other provisions of this

order, the appointment of officers and other employees of the Agency

shall be made by the Agency. The terms and conditions of employment

shall be established by the Agency with the concurrence of the

Minister in accordance with the provisions of the Act, the Immigration

Act and its subsidiary legislation.

(2)

The Agency shall appoint and employ, at such

remuneration and upon such terms and conditions as it may in

accordance with sub-article (1) determine, such officers and

employees of the Agency as may be necessary for the due and efficient

discharge of the function of the Agency in compliance with established

Government procedures

Provided that all employees having an employment

contract with the detention services on the date of the coming into

force of this order will be taken over by the Agency in terms of article

38 of the Employment and Industrial Relations Act and become

employees of the Agency.

(1)

The Prime Minister may, at the request of the

Agency, from time to time direct that any public officer shall be

detailed for duty with the Agency in such capacity and with effect

from such date as may be specified in the direction

Provided that the Prime Minister may at any time revoke

such direction.

(2)

Where any public officer is detailed for duty with the

Agency, such officer shall, during the time in which such direction is

in force, be under the administrative direction and control of the

Agency but shall otherwise remain, and retain all rights and duties as,

a public officer, and for the purposes of any law relating to

Government service pensions, service with the Agency shall be

deemed to be service with the Government.

(3)

Any public officer detailed for duty as provided in sub-

article (1) shall continue to be detailed for duty as aforesaid until the

Prime Minister may revoke such direction

Provided that where the Prime Minister revokes any

direction as aforesaid the officer in whose respect the direction is

revoked shall retain such grade in the public service which he held

immediately before being detailed for duty with the Agency as a

Government agency by virtue of this article or shall occupy such other

higher grade which he would have occupied had he not been detailed

as aforesaid.

(1)

When anything has been commenced by or under

the authority of the Government prior to the date of the coming into

force of this order, and such thing relates to any of the properties or

undertakings or any right or liability transferred to the Agency by or

under this order, such thing may be carried on and completed by or as

authorised by the Agency.

(2)

Where, immediately before the coming into force of this

order, any legal proceedings are pending to which the Government is

or is entitled to be a party, and such proceedings are related to any of

the properties or undertakings, or any right or liability transferred by

or under this order, the Agency shall, as from the aforesaid date, be

substituted in such proceedings for the Government, or shall be made a

party thereto in the same manner as the Government could have

become, and such proceedings shall not abate by reason of the

substitution.

In the Fourth Schedule to the Act, immediately after the

words "International Protection Agency" there shall be added the

following

"Detention Services Agency

To be responsible for

the confinement of third

country

nationals

who

entered Malta irregularly or

are irregularly present in

Malta, and who have been

issued

with

an

order

prescribing their detention".

Any reference in any other law to "Head", meaning the

Head Detention Services" or "Detention Services" or "Detention

Service" meaning the Department responsible for Detention Services,

shall be read and construed, after the coming into force of this order, as

a reference to the "Chief Executive Officer of the Detention Services

Agency" and "Detention Services Agency" respectively.