Introductory Info
Date introduced: 27 November 2023
House: House of Representatives
Portfolio: Home Affairs
Commencement: The day after Royal Assent
Purpose of
the Bill
The purpose of the Migration
Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 (the
Bill) is to amend the Migration Act 1958
to:
- create
new criminal offences for breaching certain visa conditions
- amend
the circumstances when a Minister must vary the conditions for a Bridging Visa
R and
- introduce
new powers for the collection and use of information related to an electronic
monitoring device.
These amendments follow the recent enactment of the Migration
Amendment (Bridging Visa Conditions) Act 2023 (First
Amendment Act) which was introduced and passed within the space of one
day.[1]
Progress of
the Bill as at the time of writing
The Bill passed the House of Representatives on the day of
introduction. The Opposition, the Australian Greens, Bob Katter (Katter’s
Australian Party), Rebekha Sharkie (Centre Alliance) and Independents Russell
Broadbent, Zoe Daniel, Andrew Gee, Monique Ryan, Allegra Spender, Zali
Steggall, Kylea Tink and Andrew Wilkie did
not support the passage of the Bill through the House of Representatives. Ms
Daniel proposed an amendment
that would have required the Bill to be reviewed within six months of
commencement, with the report to be tabled in Parliament.
At the time of writing this Digest, the Bill is before the
Senate. Amendments to the Bill have been moved by:
- Independent
Senator David Pocock, to provide that the amendments made by the Bill and the First
Amendment Act sunset
after 12 months (or alternatively six
months) and that amendments to provisions of the Migration Regulations
introduced by the First Amendment Act do not commence until they have
been approved by a resolution of each House of the Parliament
- Senator
Malcolm Roberts of Pauline Hanson’s One Nation, to require
the Bill to be reviewed within six months of commencement, with the report to
be tabled in Parliament.
Media
reporting has foreshadowed that the Government will seek to move amendments
to the Bill to introduce a new detention order scheme to be modelled on the continuing
detention order scheme in Division 105A of the Criminal Code.
The Minister for Home Affairs, Clare O’Neil, has stated
'we are not going home until a preventative detention regime has been adopted
by this Parliament. We're not going home.’
Background
History of
mandatory detention in Australia
The policy of mandatory detention was introduced in 1992
by the Keating Government.[2]
It is currently provided for in section
189 of the Migration Act, which requires that all unlawful
non-citizens must be taken into immigration detention.[3]
An unlawful non-citizen is a non-citizen in Australia who
does not hold a valid visa (the meaning of unlawful non-citizen is set
out in Division 1 of Part 2 of the Migration Act). If a visa is
cancelled, its former holder becomes an unlawful non-citizen (unless they hold
another visa which comes into effect immediately after cancellation of the
first visa). Section
198 of the Migration Act imposes duties on an officer to remove an
unlawful non-citizen from Australia as soon as reasonably practicable, in a
range of circumstances.
The 2015
report of the Australian Human Rights Commission into Children in
Immigration Detention notes:
There is nothing new in the finding that mandatory
immigration detention is contrary to Australia’s international obligations. The
Australian Human Rights Commission and respective Presidents and Commissioners
over the last 25 years have been unanimous in reporting that such detention,
especially of children, breaches the right not to be detained arbitrarily. (p.
10)
The lawfulness of indefinite immigration detention was
discussed in detail in the Bills
Digest for the Migration
Amendment (Clarification of International Obligations for Removal) Act 2021.[4]
High
Court’s decision in NZYQ v Minister for Immigration, Citizenship and
Multicultural Affairs
On 8 November 2023, the High Court of Australia in the
case of NZYQ v
Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ
decision) ordered
the release of an individual known as NZYQ from immigration detention. He
had been in immigration detention since 2018 after his temporary protection
visa was cancelled following conviction for child sex offences. NZYQ is from
the persecuted Rohingya people not recognised as citizens in Myanmar. He was
therefore stateless and could not be removed to his country of origin. This
meant he faced the prospect of indefinite detention.
In making these orders, the High Court ruled
that NZYQ’s detention was unlawful ‘by reason of there having been and
continuing to be no real prospect of the removal of the plaintiff from
Australia becoming practicable in the reasonably foreseeable future’. The High
Court did not release its reasons at the time it made the order.
On 28 November 2023, the High Court released
the reasons for its judgment – initially, it had not been expected to do so
until
early 2024. The court found that indefinite
immigration detention was unconstitutional because it was punitive – Chapter
III of the Constitution sets out that punishment may only be ordered by
a court, and not, as in this case, by powers under the Migration Act.
The ruling overturned a 2004 precedent set in Al-Kateb
v Godwin, which held that even though the plaintiff – a stateless
Palestinian and unsuccessful asylum seeker – could not be removed from
Australia in the reasonably foreseeable future, he was not unlawfully detained.
A 4–3 majority of the Court upheld the validity of provisions of the Migration
Act requiring the continuing detention of unlawful non-citizens even where
their removal was not reasonably practicable in the foreseeable future.
In its decision in NZYQ, the High Court provided some
clarity on when detention would be considered lawful:
Release from unlawful detention is not to be equated with a
grant of a right to remain in Australia. Unless the plaintiff is granted such a
right under the Migration Act, the plaintiff remains vulnerable to removal
under s 198. Issuing of a writ of habeas corpus would not prevent re‑detention
of the plaintiff under ss 189(1) and 196(1) of the Migration Act in the future
if, and when, a state of facts comes to exist giving rise to a real prospect of
the plaintiff’s removal from Australia becoming practicable in the reasonably
foreseeable future. Nor would grant of that relief prevent detention of the
plaintiff on some other applicable statutory basis, such as under a law
providing for preventive detention of a child sex offender who presents an
unacceptable risk of reoffending if released from custody. [para 72].
In a statement
from the Attorney-General tabled in Parliament on 5 December 2023, the Government
clarified its interpretation of the NZYQ decision and proposed preventative
detention scheme:
Any detention imposed under Commonwealth law otherwise than
as a result of the adjudgment and punishment of criminal guilt must be directed
to a legitimate non-punitive purpose, such as the protection of the Australian
community from an unacceptable risk of grave or serious harm.
The High Court has previously upheld preventative detention
of High Risk Terrorist Offenders on community safety grounds, where that is
ordered by a court, and where the scheme is tailored to protecting the
community from the threat of harm from terrorism: Benbrika (2021) 272 CLR 68 at
[36], [41], [43], [48] (Kiefel CJ, Bell, Keane and Steward JJ); see also [79],
[100] (Gageler J), [163] (Gordon J).
These principles have formed the basis of the Government’s
proposed preventative detention regime – a regime that is closely modelled, in
all relevant respects, on the preventative detention laws for High Risk
Terrorist Offenders which were first introduced by the former government in
2016.
The
NZYQ-affected cohort
Following the release of NZYQ, a further cohort of over
140 people have progressively been released from immigration detention. A
Department of Home Affairs ‘dashboard’
document released through a Senate order for the production of documents
gave some details of the initial cohort of 92 people potentially affected by
the ruling.
As explained in the Explanatory
Memorandum to the Migration Amendment (Bridging Visa Conditions) Bill 2023:
The NZYQ-affected cohort is made up of people who have been
refused grant of a visa, or had their visa cancelled, and who are on a removal
pathway but who have no real prospect of removal becoming practicable in the
reasonably foreseeable future. In many cases, the person has a protection
finding, within the meaning of section 197C of the Migration Act, which
prevents their removal to their country of citizenship or habitual residence
and there is currently no other country to which their removal can be effected.
A ‘protection finding’ reflects the circumstances in which Australia has
non-refoulement obligations with reference to a person. In other cases, removal
is not practicable in the foreseeable future for other reasons, including where
the person is stateless and their country of former habitual residence is not
willing to accept their return.
Of the current known cohort, the majority were refused a
visa, or had their visa cancelled, on character grounds. Others in the cohort
had their visa cancelled on other grounds, but had not previously been granted
a bridging visa due to risks they present to the Australian community. (p. 30)
Migration
Amendment (Bridging Visa Conditions) Act 2023
On 16 November 2023, the Government introduced the Migration
Amendment (Bridging Visa Conditions) Bill 2023. This Bill passed both
Houses that day with the support of the Opposition and received Royal Assent on
17 November. At that point, the High Court was yet to hand down its reasons in the
NZYQ decision – it did so on 28 November 2023.
The amendments made by the Migration
Amendment (Bridging Visa Conditions) Act 2023 have the effect of
providing for the grant of bridging visas (specifically Subclass 070 (Bridging (Removal
Pending)) Visa R (BVR)) to non-citizens released from immigration detention
with certain monitoring conditions placed on them. A person commits an offence
if they breach a relevant condition. New conditions and the provisions under
which they must or may be imposed were inserted into the Migration Regulations
1994.
Committee
consideration
At the time of writing, the Bill has not been referred to
any Committees.
Senate
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee has not reported on the
Bill at the time of writing.
Position of
major interest groups
The Law Council of Australia has released media statements
on the present
Bill and the previous
Bill, urging further review of and consultation on the measures.
The Kaldor Centre for International Refugee Law has
discussed the potential impacts regarding international law, including in an article
in The Conversation following the release of the High Court’s
reasons, and in a piece on mandatory
detention.
A number of commentators have discussed issues of the
intersection of constitutionality, government, the parliament and the courts,
including professor of law Rosalind
Dixon and public policy researcher Bronwyn
Kelly.
Others question the proportionality of the measures in the
two Bills, for example the Australian
Lawyers Alliance noted ‘there’s no suggestion or evidence [the released
detainees] are high risk … there might be some who are, but there are ways of
doing that [managing risk] for prisoners every day.’ The Human
Rights Law Centre criticised the breadth of the provisions of the first
Bill concerning compliance with the imposed conditions.
Some
commentators consider it possible the new measures could also be found
unconstitutional, with a number of challenges
already underway.
Financial
implications
The Explanatory
Memorandum states that the Bill will have a low financial impact (p. 3).
Statement
of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[5]
Parliamentary
Joint Committee on Human Rights
The Committee has not reported on the Bill at the time of
writing.
Key issues
and provisions
Creation of
new offences for breaching visa conditions
As discussed in the background section to this Bills
Digest, the First Amendment Act amended the Migration Act and the
Migration
Regulations 1994 to allow for the imposition of new visa conditions and the
creation of offences relating to breaches of certain visa conditions, that will
only apply to members of the NZYQ-affected cohort and not to other visa
holders.[6]
The new offences relate to breaching a monitoring condition, a requirement to
remain at a notified address between certain times of the day, and requirements
relating to wearing a monitoring device.
Amendments
to the Migration
Amendment (Bridging Visa Conditions) Bill 2023 proposed by the Government
in the Senate (Item 9) introduced 3 new visa conditions to be applied to the
NZYQ-affected cohort:
- New
visa condition 8622
provides that if the holder has been convicted of an offence that involves a
minor or any other vulnerable person, the holder must not perform any work, or
participate in any regular organised activity, involving more than incidental
contact with a minor or any other vulnerable person.
- New
visa condition 8623
provides that if the holder has been convicted of an offence that involves a
minor or any other vulnerable person, the holder must not go within 200 metres
of a school, childcare centre or day care centre.
- New
visa condition 8624
provides that if the holder has been convicted of an offence involving violence
or sexual assault, the holder must not contact, or attempt to contact, the
victim of the offence or a member of the victim’s family.
Item 1 of the Bill will amend the Migration Act
to insert 3 new offences with respect to breaches of visa conditions 8622, 8623
and 8624 which will also only apply to members of the NZYQ-affected cohort. These
offences carry a maximum penalty of 5 years imprisonment, or 300 penalty units,
or both.[7]
Item 2 provides that if convicted of one of these
offences, the court must impose a sentence of imprisonment of at least one year
(referred to as a ‘mandatory minimum’ sentence). As stated in the Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,
the Scrutiny of Bills Committee is likely to be critical of provisions that
impose fixed or minimum penalties, as they limit the usual judicial discretion
of the courts (p. 39).
The Government has argued that mandatory minimum penalties
are appropriate in this case as ordinarily a visa holder who breaches a
condition on their visa would be subject to visa cancellation, detention and
removal:
However, for the NZYQ affected cohort, this usual course of
action is not available. The government therefore considers that the
strengthened requirements of the minimum mandatory sentences, targeted towards
only those individuals with serious criminal history, are necessary, reasonable
and proportionate for protecting the most vulnerable members of society.
Mandatory minimum sentences appropriately reflect the seriousness of these
offences and the need to make clear that non-compliance with visa conditions
that are aimed at protecting community safety is viewed seriously. (Explanatory
Memorandum pp. 22–23)
The visa holder accused of non-compliance with a relevant
condition will bear the evidential burden in relation to whether they have a
reasonable excuse for their non-compliance (referred to as reversal of the
burden of proof). As noted
by the Scrutiny of Bills Committee, ‘provisions that reverse the burden of
proof and require a defendant to disprove, or raise evidence to disprove, one
or more elements of an offence, interfere with [the] common law right [to be
presumed innocent]’ (p. 7).
Where a Bill reverses the burden of proof, the Scrutiny of
Bills Committee expects
the explanatory memorandum to the Bill to address the following matters:
- why
it is appropriate to reverse the burden of proof
- whether
the relevant matter is peculiarly within the knowledge of the defendant
- whether
it would be significantly more difficult and costly for the prosecution to
disprove the relevant matter than for the defendant to establish the matter
- if
the defendant bears a legal burden rather than an evidential burden, why this
is the case
- whether
the approach taken is consistent with the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers (p. 7).
The Explanatory
Memorandum does not appear to address all of these matters with respect to
the reversal of the burden of proof, stating:
The visa holder accused of non-compliance with a relevant
condition will bear the evidential burden in relation to whether they have a
reasonable excuse for their non-compliance. This is reasonable and necessary in
circumstances where, given the nature of the conduct subject of the conditions,
the visa holder will have knowledge of the circumstances of their non
compliance, such that the visa holder is best placed to furnish to the court
the details of the reasonable excuse. (p. 21).
The new offence provisions will apply to a BVR granted
after commencement or a BVR granted or taken to have been granted before
commencement if the visa holder engaged in the conduct giving rise to the
offence after commencement (item 5 of the Bill).
Changes to when
the Minister must vary conditions for a BVR
The First Amendment Act inserted section
76E into the Migration Act which provides a mechanism for the holder
of a BVR subject to certain prescribed conditions to make representations for
the grant of a BVR without any one or more of those conditions, noting that decisions
relating to the grant of a BVR are not subject to the rules of natural justice. The conditions currently prescribed are
Condition 8620
(curfew) and Condition 8621
(electronic monitoring).[8]
Currently, the Minister is required to grant a person a
new BVR without one or both of those conditions if the person makes
representations and the Minister is satisfied that the person does not pose
a risk to the community. Item 3 of the Bill will amend paragraph
76E(4)(b) to provide that the Minister must instead be satisfied that the
conditions prescribed are not reasonably necessary for the protection of any
part of the Australian community.
The Explanatory
Memorandum provides that the amendment will ‘ensure that the protection of
the Australian community is the paramount consideration in relation to whether
one or more prescribed conditions must be applied to a BVR granted to a member
of the NZYQ affected cohort’ (p. 12).
New
monitoring powers
Item 4 inserts proposed section 76F which
provides for new powers that an authorised officer may exercise in relation to
a person who has been or is subject to monitoring.
Proposed subsection 76F(1) provides that an
authorised officer may do anything necessary or convenient in relation to a
person who is subject to monitoring, provided it is done for one or more
specified purposes (including installing, fitting or removing the monitoring
device; operating or using the device; and determining or monitoring the
location of the person). Proposed subsection 76F(2) sets out the
purposes for which an authorised officer may collect, use or disclose
information related to monitoring. Proposed subsection 76F(4) provides
for an authorised officer’s exercise of a power under proposed subsections
76F(1) or (2) to be subject to any conditions, restrictions or other
limitations that are prescribed by the regulations.
These amendments will apply on and after commencement to:
- persons
who become subject to monitoring before, on or after that commencement
- monitoring
devices and related monitoring equipment installed or fitted before, on or
after that commencement.
The Explanatory
Memorandum states:
The purpose of the provisions is to make very clear that
collection, use and disclosure of personal information is authorised for the
purposes of monitoring of relevant individuals, even where State or Territory
laws in respect of use of surveillance devices might otherwise apply. (p. 24)
Concluding comments
At the time of writing, the provisions introduced by the First
Amendment Act are already the subject of at least three High Court
challenges.[9]
The Law Council of Australia has
called for an urgent parliamentary review of the First Amendment Act,
stating that it has ‘strong concerns about the rushed passage of an Act that
imposes harsh offence provisions subject to mandatory sentences and draconian
limitations on liberty that are disproportionate to the risks it seeks to
address’.