The Conversation: November 18, 2024
Authors: Daniel Ghezelbash & Anna Talbot
The Albanese government is looking to introduce laws that would give it unprecedented powers to forcibly remove non-citizens from Australia. The newly introduced Migration Amendment Bill, expected to be debated in parliament this week, would:
- allow the government to send more people to third countries
- give the government immunity from being sued by people harmed when deported
- expand its powers to revisit protection findings, meaning people previously found to be refugees could be returned to their home country, and
- impose harsh visa conditions on some of those who stay.
The government says the measures are designed to protect the Australian community.
But the sweeping new removal powers are not restricted to the non-citizens with criminal histories who feature so prominently in political speeches and media reports.
They could be used to deport a wide group of people, including refugees and people seeking asylum who have lived in and contributed to the Australian community for years. It could separate families and communities, devastating Australian citizens and permanent residents who are left behind. The bill is already causing widespread fear in affected communities.
How did we get here?
This bill was introduced in response to the High Court’s judgement in the case YBFZ v Minister for Immigration earlier this month.
YBFZ (the pseudonym given to the plaintiff, a 36-year-old stateless refugee) is the latest in a series of cases decided by the High Court after its landmark decision in a separate case, NZYQ v Minister for Immigration, in November 2023.
In that case, the court found the government’s indefinite immigration detention policy was unlawful because it was a form of punishment, which under the Constitution can only be imposed by courts. The ruling led to the release of 224 people from detention.
The government responded to that decision with legislation authorising monitoring conditions, including ankle bracelets and curfews, for many of the people released. Any breach of those conditions could lead to criminal charges and imprisonment.
The YBFZ case challenged these visa conditions. The High Court ruled that they also amounted to punishment in breach of the Constitution.
The government introduced the Migration Amendment Bill a day later.
The new powers in the bill could impact a far larger group of people than those released as a result of the NZYQ case. And the bill’s concerning provisions could be overturned in further court challenges.
There is an urgent need for parliamentary scrutiny of this bill so its full consequences, including any possible unconstitutional elements, can be examined publicly before legislators vote.
Expanding powers to send people offshore
The bill creates new powers to forcibly deport non-citizens to unspecified third countries – without a need to show they pose a risk to the community.
The new provisions would mean certain visas would automatically cease as soon as a person has permission to “enter and remain in” another country that has a “third country reception arrangement” with Australia. They could immediately be put in detention in Australia until they could be removed.
Currently, asylum seekers who reach Australia by boat can be sent to Nauru. The new provisions extend this power to “bridging visa R” (BVR) holders. These visas are issued to people in detention where there is no reasonable prospect of their removal from Australia. This could be because they have been found to be owed protection, they are stateless, or their home country refuses to take them back.
This was the visa given to people released from detention as the result of the NZYQ decision. However, there is nothing stopping the government from issuing the visa to a much broader cohort in the future. Many people living in the community on other bridging visas, for instance, could be moved to this visa and sent offshore.
Some may be genuine refugees whose claims were not properly assessed. This includes those refused protection through the flawed fast-track process, which limited their ability to provide crucial information to the decision makers reviewing their protection claims.
The bill could allow for people to be held in foreign countries with no safeguards to ensure they are treated humanely, at Australian government expense. They could be detained there, potentially indefinitely, and nothing in the bill requires that a lasting solution be found for them.
The harms of Australia’s offshore regime on Nauru and Manus Island are well documented.
The offshore processing system has also come at a great financial cost to Australian taxpayers.
Evading accountability
The bill attempts to indemnify the government from being sued for any actions taken to facilitate the removal of a person from Australia or their treatment in a third country.
In the past, such civil liability claims have been a crucial accountability mechanism for those transferred offshore.
For example, dozens of refugees have secured court orders to be brought to Australia to access urgent, lifesaving treatment unavailable in Nauru or Manus Island.
Many have also sued the government for damages. In 2017, the largest human rights settlement to date was agreed between Manus Island detainees and the federal government, following a claim of unlawful detention and negligence. Other cases are ongoing.
By shutting the door to future legal challenges, the government would effectively remove one of the few proven checks on its power in this area.
Sending refugees back to harm
In addition, there are no safeguards preventing people sent to a third country later being returned to their home country where they may face persecution or other serious harm.
And the bill expands the government’s powers to revisit protection findings, meaning people previously found to be refugees could also be returned to their home country.
This power already exists in the Migration Act in relation to people who do not hold a visa. The bill seeks to expand it to people who hold certain bridging and other visas that can be specified later through regulations.
This would include people who have been living in the Australian community for years.
Refugee status should be a stable and enduring protection, not something that can be easily revoked or altered based on the government’s changing policies.
Reimposing ankle monitoring and curfews
The bill and associated regulations also seek to reimpose visa conditions, such as curfews and ankle monitoring.
These conditions could be used where the immigration minister is satisfied a non-citizen poses a substantial risk of harming the Australian community by committing a serious offence.
The Human Rights Law Centre has voiced concerns the bill would allow
the government to make assumptions about people’s future behaviour and continue imposing punitive conditions that limit people’s freedom and bodily integrity.
It is unclear whether the changes meet the requirements set down by the High Court in the YBFZ case, given restrictions would continue to be imposed without court involvement.
The bill is the latest in a series of attempts to rush through migration legislation without time for public debate.
This approach places a substantial burden on the court system, where rushed legislation is tested, and the Commonwealth often loses.
It is essential these issues are thoroughly examined and debated to ensure that Australia’s immigration policies remain fair, just, humane and legal.
Disclosure
Daniel Ghezelbash receives funding from the Australian Research Council and the NSW government. He is a member of the management committee of Refugee Advice and Casework Services and Wallumatta Legal, and a Special Counsel at the National Justice Project.
Anna Talbot receives funding from the Australian government as a PhD scholar and Strategic Litigation Network Coordinator at the Kaldor Centre for International Refugee Law, University of NSW, Sydney,