Introductory Info

 

Date introduced: 26 March 2024
House: House of Representatives
Portfolio: Home Affairs
Commencement: the day after Royal Assent.

Purpose of the Bill

The purpose of the Migration Amendment (Removal and Other Measures) Bill 2024 (the Bill) is to amend the Migration Act 1958 to:

• set out in legislation a Parliamentary expectation that ‘removal pathway non-citizens’ will voluntarily leave Australia, cooperate with steps taken to arrange their lawful removal from Australia, and not attempt to obstruct or frustrate their removal from Australia
• give the Minister the power to make written directions to a ‘removal pathway non-citizen’ to facilitate their removal from Australia
• introduce criminal penalties for refusing or failing to comply with a valid removal pathway direction, including requiring courts to impose a mandatory minimum sentence
• confer a discretionary personal power on the Minister to designate a country as a ‘removal concern country’, by legislative instrument, if the Minister thinks it is in the national interest to do so and
• empower the Minister to reverse a protection finding in relation to a lawful non-citizen who is on a removal pathway.

The Bill will also make amendments to clarify the application of provisions introduced by the Migration Amendment (Bridging Visa Conditions) Act 2023.

Background

Power to remove non-citizens from Australia

Since they were inserted on 1 September 1994, Divisions 7 and 8 of Part 2 of the Migration Act have provided for the mandatory detention and mandatory removal from Australia of an ‘unlawful non-citizen’, being someone who is a non-citizen in Australia who does not hold a valid visa. As noted by the High Court of Australia, ‘the basic structure and the text of the critical provisions of Divs 7 and 8 have not altered’ since they were introduced.

Section 189 of the Migration Act requires that all ‘unlawful non-citizens’ must be taken into immigration detention. Section 198 of the Migration Act provides that unlawful non-citizens in immigration detention must be removed from Australia ‘as soon as reasonably practicable’.

While removal can be effected on a ‘voluntary’ basis under subsection 198(1), if a person does not cooperate with the processes to remove them to their country of origin, they may be removed involuntarily. According to the Department of Home Affairs, in 2022–23 there were 2,184 unlawful non-citizens removed from Australia and 90 unlawful non-citizens were removed involuntarily (p. 48).

However, as noted in the Explanatory Memorandum to the Bill (p. 22), certain countries refuse to accept involuntary repatriation of their citizens and may, for example, refuse to issue travel or identity documents for the person. As noted by the Australian Human Rights Commission (AHRC), ‘There is currently no obligation on a non-citizen to assist with efforts to give effect to their removal’ (Submission 68, p. 3).

The NZYQ decision and subsequent legislative responses

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. NZYQ had been in immigration detention since 2018 after his temporary protection visa was cancelled following conviction for child sex offences. Because NZYQ is a stateless Rohingya person from Myanmar, he could not be removed to his country of origin. This meant he faced the prospect of indefinite detention in Australia. As Professor Spencer Zifcak from the Australian Catholic University notes:

He had relatives in Saudi Arabia and Bangladesh. But there was no real prospect that he could be provided with a right to enter or reside in either country. Given his criminal conviction there was also little or no chance that any other country would accept him. So, there was no reasonable prospect of his removal from Australia becoming practicable. He was stuck indefinitely, and perhaps for life, in immigration detention.

In making orders for his release, 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’. In its judgment (which was released following the initial orders) the High Court found that indefinite immigration detention was unconstitutional because it was punitive – 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 High Court unanimously overruled its 2004 finding in Al-Kateb v Godwin, where 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]

Passage of subsequent legislation

Following the release of NZYQ, a further cohort of over 150 people have progressively been released from immigration detention.

On 16 November 2023, the Government introduced the Migration Amendment (Bridging Visa Conditions) Bill 2023. This Bill passed both Houses that day and received Royal Assent on 17 November. 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 (Bridging Visa R)) to non-citizens in the ‘NZYQ-affected cohort’ 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.

On 27 November 2023, the Government introduced the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023, which passed both Houses on 6 December as the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Bill 2023. The Bill as introduced made a number of amendments following the rapid introduction and passage of the Migration Amendment (Bridging Visa Conditions) Act 2023 (see the Bills Digest for the Bill as introduced). The Bill as passed included substantial additional amendments to introduce a new Community Safety Order scheme and provide for its operation for the NZYQ-affected cohort (see the supplementary Explanatory Memorandum).

Impact of the NZYQ decision and subsequent court decisions

As noted by the AHRC, at the time the Bill was introduced there was ‘uncertainty about whether the principle of NZYQ will apply to those non-citizens who refuse to cooperate with efforts to facilitate their removal’ (Submission 68, p. 7).

On 30 November 2023, days after the NZYQ decision, the Federal Court of Australia ordered the release from detention of an Iranian national referred to as AZC20 who could not be returned to Iran unless he consented and cooperated with Iranian authorities to facilitate the issuance of a travel document. As summarised by the AHRC:

Ultimately, Justice Kennett found that the circumstances of the applicant in AZC20 meant that he was unable to cooperate with efforts to effect his removal to Iran, predominantly due to his subjective fear of persecution there, and his mental health preventing him from changing his approach. He was, however, willing to be removed to any other country. (Submission 68, p. 7)

On 11 January 2024, the Federal Court of Australia dismissed the case of an Iranian citizen, known as ASF17, who refused to engage with the removal process to that country, upholding the validity of his continued detention. The Government contended that if a person is not cooperating with their removal process, this does not constitute grounds for release from immigration detention under the NZYQ decision because the prospect of their removal may become practicable in the foreseeable future, that is, if the person should choose to cooperate. The applicant in ASF17 filed an appeal of the decision to the Full Federal Court, with the Government intervening to have it heard before the High Court (see further below).

Against this backdrop, the Federal Court had also ordered the release of two Iranian nationals in circumstances where there was no real prospect of them being released from detention because they have not cooperated with the removals process.[1] As noted by constitutional law expert, Anne Twomey, the inconsistent approach taken by the lower courts led to the Government seeking to have the High Court hear the matter of ASF17. She discussed the impact that decision may have had on those currently in immigration detention:

If the High Court were to decide that a person could prevent their deportation by refusing to cooperate and could use this to cause their release into the community, it would give detainees a great incentive to refuse cooperation in deportation matters.

Stakeholders such as the Law Council of Australia (Submission 71, p. 7) and the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW Sydney (the Kaldor Centre; Submission 11, p. 3) noted that the decision in NZYQ, and the expected decision in the matter of ASF17, appear to have led to the introduction of the Bill. When asked whether the Bill was in response to the forthcoming ASF17 decision in a Committee hearing on 26 March 2024, the Department of Home Affairs stated:

The passage of this legislation or not has no relevance to the outcome of that High Court case, because that court case is really considering immigration detention for the purposes of the executive function, which is a legitimate, non-punitive purpose of detaining someone, and the accepted reasons for that are where it's for the purpose of removal or where it's for the purpose of processing a visa. In the NZYQ decision it was found that if you're not doing one of those two things and there is no real prospect of removal you need to release the person from immigration detention. The ASF17 case will be looking at whether you can reach that threshold even if there would be a real prospect of removal if the person were to cooperate but they're not cooperating. So, it's really testing whether the reason that you can't remove someone matters. In our view, no, this legislation isn't being driven by that High Court case, in the sense that it will operate equally in relation to someone who's in immigration detention or someone who's on a bridging visa R. (p. 10)

However, in its later submission to the Legal and Constitutional Affairs Legislation Committee, the Department acknowledged that it ‘cannot rule out the possibility of further court decisions that could have a material impact on critical aspects of the migration system’:

For example, if a court were to draw a new constitutional limit on the power of the Executive to lawfully detain a non-citizen who is not cooperative towards their lawful removal – i.e. where the non-citizen’s cooperation is material in determining whether there is a real prospect of removal from Australia becoming practicable in the reasonably foreseeable future – a key attribute of Australia’s sovereignty could be severely circumscribed. There could be a greatly diminished capacity for the Parliament and Executive to create and administer an orderly migration system, including detention arrangements for unlawful non-citizens who are required to be removed from Australia.

The implication of non-citizens enlivening a constitutional entitlement to release into the Australian community by choosing not to cooperate with removal, would require new responses by Government to bolster the migration framework.

Moreover, a court decision that gives significance to the choices of some non-citizens on whether to cooperate or not cooperate with their removal would present new challenges to the Government in determining appropriate visa and entry arrangements for countries that do not cooperate with involuntary removal of their own nationals. (Submission 75, p. 8)

High Court’s decision in ASF17 v Commonwealth of Australia [2024] HCA 19

On 10 May 2024, the High Court handed down its decision in ASF17 v Commonwealth of Australia, unanimously dismissing the appeal from the Federal Court and finding that ASF17’s continuing detention under subsections 189(1) and 196(1) of the Migration Act ‘does not exceed the temporal limitation on the valid application of those provisions imposed by Chapter III of the Constitution’ [para 49].

In the majority decision, the High Court found that where there is a real prospect of removal becoming practicable in the reasonably foreseeable future, the Government has the power to detain a person who is a non-citizen ‘if and for so long as removal could be achieved in the reasonably foreseeable future were the detainee to decide to cooperate in the undertaking of administrative processes necessary to facilitate that removal’ [para 42].

The Government and the Opposition both welcomed the High Court’s decision in ASF17.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 7 May 2024. Details of the inquiry are at the Committee’s homepage.

The Committee received over 120 submissions and held one public hearing into the Bill. The Committee had also previously held a hearing on 26 March 2024 as directed by the Senate Chamber at which the Department of Home Affairs gave evidence.

On 7 May 2024, the Committee tabled its report, which recommended that the Bill be passed and that the Minister considers community impacts when designating a country as a removal concern country. There were also three dissenting reports tabled by the Coalition Senators who participated in the inquiry, the Australian Greens and Senator David Pocock.

Coalition Senators supported the policy intent of the Bill but made a number of recommendations ‘focused on additional safeguards and improvements to the operation to the bill in response to the concerns raised in this inquiry’:

• Recommendation 1: Proposed subsection 199B(1) be amended to reflect the Government’s stated intention that the cohort of ‘removal pathway non-citizens’ be only those individuals who have neither legal proceedings (relevant to their migration status) on foot, nor any pending ministerial intervention requests.  Alternatively, consideration could be given to amending section 199D(2) to expand the circumstances in which a removal pathway direction cannot be given to include circumstances where judicial review proceedings are still on foot or there is an outstanding application for Ministerial intervention.
• Recommendation 2: Subsection 199B(1)(d) be amended to clarify that the power only applies to additional visas issued for non-citizens to maintain lawful status in the community while making arrangements to depart or be removed from Australia.
• Recommendation 3: Subsection 199B(1)(d) should be amended to specifically refer to prescription by regulation under section 504 of the Migration Act 1958 to remove any doubt that the exercise of the power will be by way of delegated legislation subject to disallowance.
• Recommendation 4: The Bill be amended to insert a requirement after section 199D(5) that, prior to giving a removal pathway direction in relation to any child, the Minister must conduct an assessment of whether the direction is in the best interests of the child, as one of the factors to be considered by the Minister prior to making a removal pathway direction.
• Recommendation 5: Consideration be given to amending the Bill to provide for the additional safeguards proposed by the Scrutiny of Bills Committee in relation to the Minister’s power to give removal pathway directions; namely: (a) providing a minimum time for compliance which would allow a person to take steps to comply and seek legal advice; and (b) better delimitation of the directions that may be given by the Minister.
• Recommendation 6: The imposition of mandatory minimum criminal penalties elevates the need for additional safeguards to be inserted into the Bill through amendment (including through the amendments proposed in recommendations 1 to 5 of this report). Proposed amendments to the Bill should be considered in this context.
• Recommendation 7: Within seven days of the end of each month, the Minister should be required to provide a statement to be tabled in Parliament in relation to each removal pathway direction which is given by the Minister during the month with the detail proposed by the Coalition in its amendments to the Bill moved in the House of Representatives.
• Recommendation 8: The power to declare a country as a removal concern country be redrafted to require the Minister to consider a set of factors which must be considered prior to making a designation (e.g. those factors required to be included under section 72 of the UK's Nationality and Borders Act 2022), including the potential impact on Australian diaspora communities of making such a declaration.
• Recommendation 9: The Minister and/or the Parliamentary Joint Committee on Intelligence and Security (PJCIS) be required to review the decision to declare a country as a removal concern country on a regular basis and be required to table in both Houses of Parliament the reasons why continued designation of a country as a removal concern country is justified.
• Recommendation 10: The reasons for a declaration of a country as a removal concern country not being subject to disallowance should be clearly explained in the Explanatory Memorandum.  If a declaration is not subject to disallowance that elevates the need for further details to be provided in the Bill with respect to the circumstances in which a declaration would be made.
• Recommendation 11: Any declaration of a country as a removal concern country should be subject to sunsetting after three years.
• Recommendation 12: That the exemptions under section 199G(2) from the prohibition on applying for visas should be expanded to include: parents of independent children, grandparents, siblings and dependent persons (to take into account non-western kinship systems as suggested by the Parliamentary Joint Committee on Human Rights).
• Recommendation 13: That Government should:

(a) undertake a comprehensive review of all mitigating measures (and resourcing requirements for such measures) beyond strategic communications that may be required to mitigate any potential ‘pull factors’ that may arise from the Bill; and

(b) commit to agreeing to implement such measures in the event the Bill is passed to ensure that any ‘pull factors’ are mitigated to the full extent practical.

• Recommendation 14: The Government should restore the Operation Sovereign Borders framework in full by: (a) reinstating temporary protection visas; (b) reversing the budget cuts to border protection; and (c) restoring maritime patrols and aerial surveillance levels to at least the levels in 2020-21.
• Recommendation 15: A statutory review should be undertaken with respect to the exercise of the powers under the Bill after five years of operation.  The review should be open to public submissions. 
• Recommendation 16: It is recommended that a note to drafting be added to proposed section 199B to clarify the Department’s intention not to capture other holders of Subclass 050 (Bridging) General Visas.
• Recommendation 17: Given the nature of the powers granted to the Minister under the Bill, it is recommended that the Bill be amended as detailed in this report to provide additional safeguards. 

The Australian Greens recommended that the Bill ‘should be rejected in full’, citing a number of concerns including the impacts of designating a country as a ‘removal concern country’ (which the Greens refer to as a ‘travel ban’), the inclusion of significant criminal penalties and the number of people who would be impacted were the Bill to be passed. The Australian Greens also noted that all submitters to the inquiry, except for the Department and the Australian Federal Police, opposed the Bill.

Senator Pocock also recommended that in the first instance the Bill not be passed and the Government provide ‘access to an expedited re-application process to everyone who has been subjected to the “Fast Track system”, including access to merits review’. He also made a number of recommendations aimed at supporting people whose protection claims were assessed by the fast-track process in the event the Bill was to be passed. Senator Pocock also recommended that the proposed mandatory minimum sentence for refusing or failing to comply with a removal pathway direction be deleted from the Bill and that the denial of visas to citizens of a ‘removal concern country’ only apply to government officials of that country and their immediate family members.  

Senate Standing Committee for the Scrutiny of Bills

In its fifth report of 2024 (pp. 2–9), the Senate Standing Committee for the Scrutiny of Bills raised a number of issues with respect to the Bill, including:

• the ability to expand the scope of people that may be subject to removal pathway directions by legislative instrument
• the broad power of the Minister to give removal pathway directions
• the lack of legislative time limits with respect to removal pathway directions
• the use of mandatory minimum sentences
• the expansion of the classes of persons for whom the minister is empowered to overturn a protection decision
• the ability of the Minister to designate a country as a ‘removal concern country’ by legislative instrument and
• the speed with which the Bill is anticipated to pass the Parliament.

Some of these issues are discussed further in the ‘Key provisions and issues’ section of this Bills Digest.

The Committee also made broader comments around the rushed passage of recent legislation in the Home Affairs portfolio outside of the normal parliamentary processes, noting that such ‘rapid changes prevent certainty in the law’ and that legislation which may trespass on personal rights and liberties should be subject to a high level of parliamentary scrutiny.

Policy position of non-government parties/independents

On the morning the Government introduced the Bill and scheduled it for debate (26 March 2024), the Government separately provided the Opposition and crossbench with briefings on the Bill.

In debate in the House of Representatives, Opposition and crossbench members were critical of the Government’s stated urgency of the Bill.

The Greens stated that the Government had not provided a ‘reasonable explanation’ for the urgency, and were critical of the Bill’s provisions, stating it would give the Minister ‘outrageous powers’.

The member for Warringah, Zali Steggall, stated that there were ‘grave questions about the consequences and the far-reaching implications of this legislation’ and found it ‘disappointing’ that the Bill was to be passed ‘with no delay, no scrutiny and no debate’. She proposed amendments which would require the Minister to hold an independent review of the Bill’s amendments 3 months after commencement, and provide that the Minister must not give a removal pathway direction to a person suffering from domestic abuse or homelessness.

The member for Goldstein, Zoe Daniel, stated that ‘this is the third time that we’ve been asked to support legislation designed to address the High Court’s insistence that sentencing is a matter for the courts, not a decision for governments, and each time that legislation has proved vulnerable to further High Court action’.

Independent members were also critical of the Bill’s provisions. The member for North Sydney, Kylea Tink, called for amendments to ensure ‘at a minimum’ the measures would only apply to the NZYQ cohort and raised concerns on international law, particularly with regard to the best interests of the child.

The member for Wentworth, Allegra Spender, stated ‘I absolutely acknowledge the need to have a way to remove the people who do not have the right to live in Australia, but this is not the way to do that’, and also criticised the Opposition for not agreeing to a motion for adjournment on the Bill to allow for further scrutiny and debate.

The Shadow Minister for Immigration and Citizenship, Dan Tehan, stated that ‘if we can’t look at the detail, if we can’t make sure that there are no unintended consequences, this legislation might not do the job that the minister is hoping that it will do’. The Opposition proposed amendments that would require the Minister to prepare a statement regarding each removal pathway direction, and a monthly statement about the number of individuals who were released from immigration detention during the preceding month, both to be tabled in each House of Parliament.

Mr Tehan called for a Senate inquiry into the Bill that evening, as did other Opposition members (the Senate directed the Legal and Constitutional Affairs Legislation Committee to hold the hearing). However, the Opposition voted with the Government to pass the Bill in the House of Representatives.

In the Senate, the Greens continued to criticise the Government’s urgency on the Bill and called for the Bill to be referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 June 2024.

Senator David Pocock supported an inquiry, stating ‘it was very unclear last night [at the Legal and Constitutional Affairs Legislation Committee hearing of 26 March] why this is so urgent’. Senator Pocock proposed a number of amendments for the committee of the whole debate which would require review of the operation of the Bill’s amendments, impose a sunsetting arrangement on the Bill’s amendments, and oppose proposed subsection 199E(2) (mandatory sentence of imprisonment).

Senator Pauline Hanson’s proposed amendments would increase the applicable terms of imprisonment for a person refusing to cooperate with their removal process.

Referral of the Bill to the Legal and Constitutional Affairs Legislation Committee passed with the support of the Opposition and the crossbench, with an amended reporting date of 7 May as proposed by the Opposition.

Some individual members and senators within the major parties have raised concerns on the Bill. The ALP member for Bennelong, Jerome Laxale, reportedly wrote to his constituents regarding the proposal to not accept visa applications from removal concern countries, noting he had raised the matter with the Minister and encouraging them to make submissions to the committee inquiry. The same media report noted information provided on condition of anonymity that some Labor members were concerned about the removal concern country provisions, and that the Opposition planned to introduce amendments to broaden the exemptions available for the measure.

Shadow Minister for Home Affairs, Senator James Paterson, later stated in an interview that the Opposition wanted to ensure there were no ‘unintended consequences’ of the Bill and that any new powers granted to the Minister came with ‘appropriate safeguards’. Senator Paterson stated that the removal concern country provisions might not be effective in encouraging countries to accept the return of their citizens, or as a ‘threat’, and that it was:

… ludicrous to think that the Australian government threatening to ban Iranians applying for visas is all of a sudden going to change the posture of the Iranian government on this or anything else.

He further argued that the proposed measures might lead to more asylum seekers arriving irregularly by boat if they were prevented from applying for a visa to enter Australia.

Recently-appointed Shadow Assistant Minister for Multicultural Engagement (and deputy chair of the Legal and Constitutional Affairs Legislation Committee), Senator Paul Scarr, was reported as urging a ‘sensitive and empathetic’ approach to the debate, encouraging all parliamentarians to listen to the views of community groups on the issue.

Position of major interest groups

Submissions to the Senate Legal and Constitutional Affairs Legislation Committee inquiry were overwhelmingly opposed to the Bill. Stakeholders have raised a broad range of concerns with the provisions of the Bill and its potential wider impacts.

Key issues raised included:

• the short timeframes for consultation and consideration of the Bill
• the broad scope of the Bill, including the range of people it may directly affect, the significant impacts it may have on them, and the adequacy of the safeguards provided for
• that the measures in the Bill may not be effective or adequately justified, and that its objectives might be better achieved through other means
• the wider impact on individuals, communities and social cohesion.

Stakeholder comments on specific provisions of the Bill are covered in the ‘Key issues and provisions’ section below.

Comments on short timeframes

Community groups and service providers in particular criticised the tight timeframe for the inquiry and the consequent limited consultation this permitted with their communities, highlighting the significant impacts the Bill may have on them.

Multicultural Australia states that due to the short timeframes,

… we have not been able to engage with our community partners or invite community members for detailed discussion or advice on the proposed Bill. We are also concerned that the lack of consultation with migrant communities means the voices of communities directly impacted by the Bill are not included. (Submission 67, p. 2)

Legal academics at the Faculty of Law at the University of Technology Sydney, Dr Anthea Vogl and Dr Sara Dehm, stated:

The speed with which the Bill has been drafted and opened for inquiry is a barrier to meaningful engagement and response from the community, experts, and advocates, as well as those who will be most affected by these reforms. (Submission 80, p. 1)

Other submissions which have raised these concerns include (but are not limited to): the Kaldor Centre (Submission 11), the Settlement Council of Australia (Submission 44), the Forum of Australian Services for Survivors of Torture and Trauma (Submission 45), the Asylum Seeker Resource Centre (Submission 59) and the Refugee Advice and Casework Service (Submission 73).

Comments on the scope and impacts of the Bill

Many stakeholders were concerned that the Bill would have broad and significant impacts and would not provide sufficient safeguards for affected people or sufficient constraints on the powers granted to the Minister. (See also the ‘Key issues and provisions’ section below for specific stakeholder arguments.)

The Kaldor Centre stated it had ‘serious concerns about the scope and ramifications’ of the Bill and that it ‘gives the Minister extraordinarily broad and ill-defined powers’ (Submission 11, p. 3). The submission goes on to provide arguments stating that the Bill ‘does not adequately protect against risks of refoulement’ (the return of a person to a country where they may face persecution; pp. 4–5) and that the designation of a removal concern country would be ‘a discretionary ministerial power that requires little consultation and is unlikely to be subject to administrative or judicial review’ (p. 8).

The Multicultural Youth Advocacy Network Australia stated:

… the opaque nature of decision-making under such enhanced ministerial powers could erode public trust in the immigration system. Without clear guidelines or the requirement for detailed public reasoning behind decisions, there is a risk that policy implementation could become inconsistent, leading to perceptions of bias or unfair treatment. (Submission 46, p. 5)

The Office of the United Nations High Commissioner for Refugees (UNHCR) broadly addresses Australia’s international obligations and protection framework, and draws attention to international refugee law, notably the 1951 Convention Relating to the Status of Refugees (1951 Convention). Its submission argues that the Bill provides ‘inadequate protections against refoulement’, including:

... processes that are expanded in the Bill to determine that non-refoulement obligations are no longer owed to non-citizens do not adhere to the requirements of the cessation provisions of the 1951 Convention, also contributing to a heightened risk of refoulement for those captured by the operation of the Bill. (Submission 65, p. 3)

In addition,

UNHCR emphasises that safeguards are also needed to ensure that removal pathway directions are not given in circumstances which would be inconsistent with Australia’s international human rights obligations. (Submission 65, p. 16)

Amnesty International Australia was ‘particularly concerned that this Bill would breach Australia’s obligations’ under the International Covenant on Civil and Political Rights in preventing citizens of particular countries from applying for visas (Submission 26, pp. 5–6).

Many submissions were concerned that the Bill’s provisions captured not only the people affected by the NZYQ decision, but would also include certain Bridging visa E holders, notably people subject to the ‘fast track’ protection visa assessment process established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, and ‘transitory persons’ brought from detention facilities in Papua New Guinea and Nauru for medical treatment in Australia. See for example the Refugee Council of Australia (Submission 41), the Asylum Seeker Resource Centre (Submission 59) and the Refugee Advice and Casework Service (Submission 73).

Submissions raised concerns on family reunion regarding a number of provisions of the Bill. These included family members being unable to visit or join relatives in Australia if prevented by the removal concern country visa application measures, and that the Minister would not be required to consider the best interests of the child or family separation when issuing a removal pathway direction.

The Asylum Seeker Resource Centre stated that the latter measure ‘contravenes Australia’s obligations under the Convention on the Rights of the Child’ (Submission 59, p. 13) and, regarding the removal concern country provisions:

Although there are limited exceptions to the entry ban regarding families, they are not sufficient and many people will be unfairly punished by the Bill. Family members such as adult children, siblings, parents of adult children and grandparents are not listed as exceptions to the entry ban. Further, the limited exceptions do not consider the nature of family relationships in non-Western contexts, where extended family members such as aunties, uncles and cousins have close ties and are considered as immediate family members. (Submission 59, p. 11)

The Settlement Council of Australia ,a peak body representing migrant and refugee services and allied organisations, stated on the removal concern country provisions: ‘This would be a blanket collective punishment of thousands of people who would have no connection to the alleged offence of certain individuals’ (Submission 44, p. 2).

A number of submissions labelled the removal concern country provisions as ‘discriminatory’ in potentially excluding certain nationals from making valid visa applications. The Kaldor Centre stated that ‘punishing people who may wish to work, study in or visit Australia for the actions of their government is punitive’ (Submission 11, p. 8) and argued that challenges in returning non-citizens to their home countries is a matter of diplomacy.

Comments on the effectiveness of the Bill

A number of submissions argued that insufficient reasoning had been given as to why the Bill was necessary. The Forum of Australian Services for Survivors of Torture and Trauma stated that the Government:

… has not provided compelling reasons for proposing exceptional measures that are likely to have profoundly adverse impacts on people who are affected directly as well as on their family members and communities. (Submission 45, p. 4)

The Law Council of Australia states that the Bill:

… poses serious questions about Australia’s adherence and commitment to international law, both as to treaties that Australia has ratified and as to customary international law. No evidence of any serious or widespread problem to justify this response has been produced by proponents of the Removal Bill. (Submission 71, p. 5)

The Refugee Advice and Casework Service states that the Bill ‘does little to meaningfully address indefinite detention or better manage the migration system’ (Submission 73, p. 3).

The Refugee Advocacy Network argues that the Bill ‘is simply not necessary, as the government already has the power to detain and remove’ (Submission 42, p. 1).

In addition to general concerns over the Bill’s introduction of criminal penalties for people refusing to cooperate with a removal direction, stakeholders argue that the measure is unlikely to have the intended effect of encouraging people to agree to removal.

The Commonwealth Ombudsman provided a submission in his role as the National Preventive Mechanism under the Optional Protocol to the Convention Against Torture (OPCAT) for places of detention under the control of the Commonwealth and in his role under the Migration Act as responsible for reviewing certain detention arrangements. The submission stated that it was:

… possible that the deterrence potential of a prison term has been over-estimated and that some people on a removal pathway will choose non-compliance with a ministerial direction over removal and remain in a cycle of detention and imprisonment for prolonged periods or even indefinitely. (Submission 105, p. 3)

It further expressed concern:

… that creating a potential cycle of indefinite detention and incarceration is not a durable solution, is contrary to the intended purpose of the Bill and risks falling short of our obligations under OPCAT to prevent torture and ill-treatment in places of detention. (p. 3)

The Multicultural Youth Advocacy Network stated that imprisoning individuals ‘does little to persuade them to return to countries where they face the threats of persecution or death, especially when some have already endured detention for a decade’ (Submission 46, p. 3).

Labor for Refugees NSW/ACT notes that the Australian Labor Party National Platform 2023 stated that ‘Labor opposes mandatory sentencing. This practice does not reduce crime but does undermine the independence of the judiciary, lead to unjust outcomes and is often discriminatory in practice’ (cited in Submission 19, p. 2).

The Migration Institute of Australia questioned the effectiveness of the removal concern country provisions, noting:

The experience of the U.S. shows that the threat of visa sanctions have not proven successful against countries such as Iran, Iraq, South Sudan, and Russia. The U.S experience also appears to suggest that a more nuanced visa sanction strategy, focusing on particular visa categories, is more effective in attaining the intended objectives. (Submission 77, pp. 9–10)

Submissions also noted that implementing the removal concern country provisions could affect Australia’s international relations, including diplomatic engagement. The Immigration Advice and Rights Centre stated that it would be ‘an international embarrassment’ and could affect Australia’s reputation as a skilled migration destination (Submission 72, p. 5). The International Commission of Jurists stated that the proposed scheme ‘is discriminatory in nature and can do nothing but harm to international relations’ (Submission 5, p. 3).

Some submissions noted the possibility of unintended consequences if visa options were closed to certain nationals under the removal concern country provisions. The Refugee Council of Australia argued that the measure could close safe and regulated complementary pathways for people of refugee backgrounds and impact other areas of migration and international relations:

… result[ing] in poor diplomatic and bilateral relations between Australia and banned countries. It has the potential to impact bilateral trade, the education sector, tourism and relationships with international organisations. (Submission 41, p. 8)

According to the Settlement Council of Australia, it may also result in more people seeking to arrive in Australia via irregular means (Submission 44, p. 2).

Some submissions, in recommending that the Bill not be passed, proposed alternative approaches to some of the challenges facing Australia’s asylum system.

UNHCR acknowledged the challenges of returning persons not in need of international protection, noting it was ‘not new or unique to Australia’ (Submission 65, p. 1). However, it reiterates concerns expressed in previous submissions to inquiries and representations to the Australian Government that:

… some of the legal and administrative measures adopted by Australia, including the insertion of restrictive statutory criteria […] are not consistent with a proper interpretation of Australia’s obligations under the 1951 Convention and international human rights law. (Submission 65, p. 2)

It stresses the need for greater international cooperation on returns, and that:

Return strategies are well complemented by opportunities for regular migration, group-based regularization programmes and possibilities for certain individuals to legalize their stay if established criteria are met. (p. 19)

The Kaldor Centre submission also refers to UNHCR’s statements on returns, and further states:

… the most effective approach to facilitating removals consistently with international law is to ensure that refugee status determination procedures are both fast and fair. The longer a person has been in Australia, the greater the legal and practical barriers to removal. At the same time, where an applicant feels they have not had an opportunity to have their protection claims fairly assessed, the more reluctant they may be to accept voluntary removal from the country. To the extent that certain non-citizens who do not have protection needs continue to refuse to cooperate with their removal, such situations are better resolved on an individual basis, according to the specific reasons for refusal, rather than blanket criminal provisions. (Submission 11, p. 10)

The Refugee Council of Australia ‘recognises that returns are part of a well-functioning asylum system’ but that the measures proposed in the Bill ‘will not facilitate voluntary removals. The more likely scenario is that people will face imprisonment and a further deterioration of their trust in the process and willingness to engage’ (Submission 41, p. 9). It recommends more ‘tailored, individual support to people’, identification of barriers to return, and notes that long delays in processing contribute to the challenges (pp. 9–11).

The Refugee Advice and Casework Service also recommends ‘reforming the protection assessment process’ stating that ‘adequate community support and engagement can do much to lower risk of recidivism, and benefits the Australian community as a whole’ (Submission 73, p. 13).

Comments on impacts on individuals, communities and social cohesion

Stakeholders noted the broad scope of individuals the Bill would affect, both directly and indirectly. Service providers and advocacy groups reported that the Bill had already created concerns in their communities.

The Forum of Australian Services for Survivors of Torture and Trauma stated that the Bill has created ‘considerable anxiety among clients and refugee background communities’ (Submission 45, p. 2). The Federation of Ethnic Communities’ Councils of Australia (FECCA) similarly noted:

The proposed amendments are causing significant concerns among our communities – concerns about security, belonging, and dignity, casting a shadow over their sense of belonging to Australian society and trust in the Australian Government. (Submission 69, p. 3)

Regarding the removal concern country measures, FECCA stated it ‘risks marginalising existing communities from the banned countries within Australia, undermining the Government’s efforts to support and promote social cohesion’ (p. 5).

The Multicultural Youth Advocacy Network stated these issues extended to the Bill as a whole:

By potentially casting a wide net over what constitutes grounds for visa cancellation or refusal, the legislation may stigmatise refugees and asylum seekers, exacerbating existing prejudices and lead to increased discrimination against migrant communities. (Submission 46, p. 3)

The Australian Iranian Community Alliance included in its submission the preliminary findings of a rapidly conducted survey on people of Iranian birth or background in Australia. It found 82% of respondents reported increased ‘stress and anxiety due to the bill’ (Submission 74, p. 21).

The Settlement Council of Australia stated:

Beyond the legal implications of the Bill, it is pertinent to consider the social cohesion impact of measures such as these, which break the trust of thousands of Australians from refugee and migrant backgrounds in the Australian government. (Submission 44, p. 3)

Many community and advocacy groups provided case studies or potential scenarios of clients or community members who could be affected by the Bill, including: the Human Rights Law Centre (Submission 18), the Migrant Workers Centre (Submission 29), the Asylum Seeker Resource Centre (Submission 59), the Edmund Rice Centre for Justice and Community Education (Submission 64), the Immigration Advice and Rights Centre (Submission 72), the Refugee Advice and Casework Service (Submission 73) and the Australian Iranian Community Alliance (Submission 74).

Financial implications

The Government considers that the amendments 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 and considers that the Bill is compatible ‘in most respects’ with these rights and freedoms (see pp. 20–35 of the Explanatory Memorandum).

The Government states that the Bill engages the following rights:

• the right to liberty and freedom from arbitrary detention in Article 9 of the International Covenant on Civil and Political Rights (ICCPR)
• the right to a fair trial and minimum guarantees in criminal proceedings in Article 14 of the ICCPR
• rights relating to families and children, including those in Articles 17 and 23 of the ICCPR and Articles 3 and 10 of the Convention on the Rights of the Child
• non-refoulement obligations arising in respect of Articles 6 and 7 of the ICCPR and in Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
• the right to privacy in Article 17 of the ICCPR
• rights in relation to the expulsion of aliens in Article 13 of the ICCPR
• the right to freedom of movement in Article 12 of the ICCPR
• the rights of equality and non-discrimination in Articles 2 and 26 of the ICCPR.

According to the Government, ‘to the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system’.

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) provided substantial comments on the Bill and raised a number of concerns, as well as recommending amendments to the Bill (pp. 16–43).

With respect to the power of the Minister to issue removal pathway directions, the PJCHR noted that these provisions engaged multiple rights, including:

• that mandatory minimum criminal penalties for non-compliance with a removal pathway direction are incompatible with the rights to liberty and to a fair trial
• depending on what a removal pathway direction required a person to do (or not do), it may also engage and limit the right to privacy and freedom of assembly, association and expression
• such directions may have flow on effects which may limit other rights, including the right to protection of the family and rights of the child and
• there may also be a risk that some individual cases may engage the absolute prohibition against non-refoulement.

The PJCHR noted that the designation of removal concern countries ‘would likely have a disproportionate impact on persons in Australia of the same nationality as that of a removal concern country, and so would engage and limit the right to equality and non-discrimination’. It may also limit the right to protection of the family.

With respect to the power of the Minister to reverse a protection finding, the PJCHR considered that this may engage and limit the right to health in relation to affected persons and in certain circumstances may limit the rights to protection of the family, a private life, and freedom of movement. Further, whether or not these provisions are compatible with Australia’s obligations in relation to non-refoulement would depend on the quality of the decision-making as to whether a person is owed protection obligations.

Key issues and provisions

Removal pathway directions

Key provisions

Proposed duty to cooperate in relation to removal

Proposed subsection 199A(1) provides that it is the Parliament’s expectation that ‘removal pathway non-citizens’ will voluntarily leave Australia, cooperate with steps taken to arrange their lawful removal from Australia, and not attempt to obstruct or frustrate their removal from Australia.

The Explanatory Memorandum is silent as to why there is a specific need to include such a clear statement of the Parliament’s intention as to how these provisions will operate instead of leaving it for the court to interpret.

In its submission to the inquiry into the Bill, the Law Council questioned the insertion of these provisions, noting that this approach appeared to be novel and that ‘in the short time available, we were unable to find reference to a similar “Parliamentary expectation” elsewhere in Commonwealth primary legislation’ (Submission 71, p. 8).

Definition of ‘removal pathway non-citizen’

Proposed subsection 199B(1) provides that a ‘removal pathway non-citizen’ is:

• an unlawful non-citizen who is required to be removed from Australia under section 198 as soon as reasonably practicable
• a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa (BVR)
• a lawful non-citizen who holds a Subclass 050 (Bridging (General)) visa and at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia and
• a lawful non-citizen who holds a visa as prescribed via the regulations.

As explained by the Department of Home Affairs:

The definition of ‘removal pathway non-citizen’ is broader than just those unlawful non-citizens who are required to be removed from Australia under section 198 of the Migration Act. Many non-citizens who were released from immigration detention following the High Court’s decision in NZYQ were granted BVRs. The intention is that lawful non-citizens who hold a BVR should be required to cooperate with efforts to facilitate their removal, or to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future. In addition, there are many non-citizens in the community who have been issued with a Subclass 050 (Bridging (General)) visa who at the time of visa grant were granted the visa on the criterion that they make acceptable arrangements to depart Australia. (Submission 75, p. 10)

Proposed subsection 199B(2) provides that the definition of ‘removal pathway non-citizen’ includes those for whom a protection finding has been made within the meaning of subsections 197C(4)–(7) of the Migration Act. Subsections 197C(4)–(7) set out the circumstances in which a ‘protection finding’ will be made in respect of a person during the consideration of a protection visa application and reflects the circumstances in which Australia has non-refoulement obligations under international law in respect of a person.

However, the Minister will not be able to issue removal pathway directions where a non-citizen cannot be removed due to the operation of subsection 197C(3). This provision provides that despite subsections 197C(1) and (2), the removal power under section 198 does not authorise the removal of an unlawful non-citizen to a particular country if:

• the non-citizen has made a valid application for a protection visa that has been finally determined
• in the course of considering the application, a protection finding was made for the non-citizen with respect to the particular country (regardless of the outcome of the visa application) and
• none of the following apply:
  • the decision in which the protection finding was made has been quashed or set aside
  • the Minister is satisfied the non-citizen is no longer a person in respect of whom a protection finding would be made or
  • the non-citizen has asked the Minister, in writing, to be removed to the particular country.

Section 197C was recently amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 following the Federal Court of Australia’s decisions in DMH16 v Minister for Immigration and Border Protection and AJL20 v Commonwealth of Australia which had interpreted section 197C as previously drafted as being inconsistent with Australia’s non-refoulement obligations under international law.[2] The Parliamentary Joint Committee on Intelligence and Security is currently conducting a review into these amendments.

Power of the Minister to issue removal pathway directions

Proposed subsection 199C(1) will give the Minister the power to make written directions to a ‘removal pathway non-citizen’ to facilitate their removal from Australia, including:

• completing, signing and submitting a passport application form, including doing and providing all things required for the application process by the passport issuing authority
• providing specified documents or information to the Department or another specified person or
• attending an interview or appointment with an officer or another specified person.

The scope of things the Minister may direct a person to do under proposed subsection 199C(1) is an exhaustive list though there are no objective considerations the Minister must consider when exercising this power, including whether it would be reasonable in the circumstances for a person to be able to comply with the directions.

Proposed subsection 199C(2) further empowers the Minister to issue directions to do or not do a thing if satisfied the measure is reasonably necessary to determine whether there is a real prospect of removal under section 198 becoming practicable in the reasonably foreseeable future, or to facilitate removal under section 198.

The Minister may give a removal pathway non-citizen more than one removal pathway direction. However, the Minister must not give a direction to a removal pathway non-citizen to do something that is the subject of a direction previously given by the Minister to the non-citizen, and for which the period specified in the direction has not ended. Under proposed subsection 199C(3), the Minister also has the power to revoke a direction. The Bill does not provide for any restrictions on the time limit in which the Minister can require a person to comply with the directions.

Proposed section 199D provides that the Minister cannot give a removal pathway direction to:

• non-citizens who cannot be removed to a particular country because of subsection 197C(3) (where a protection finding has been made as set out above)
• non-citizens who have made a valid application for a protection visa which has yet to be finally determined
• a removal pathway non-citizen where that non-citizen holds a BVR subject to certain monitoring conditions (within the meaning of subsection 76B(4) of the Migration Act) and where there would be overlap between a removal pathway direction and an instruction or specification given under the monitoring condition
• a child under 18 (though a direction may be given to their parent/guardian if they are also a removal pathway non-citizen).

The Minister must also not give a removal pathway direction requiring a person to not commence, discontinue or take or not take particular steps in the conduct of court or tribunal proceedings, or not to make, or to withdraw, a visa application made under the Migration Act.

Non-compliance with a removal pathway direction

A removal pathway non-citizen who refuses or fails to comply with a valid removal pathway direction commits an offence under proposed subsection 199E(1). The maximum penalty for non-compliance is 5 years imprisonment or 300 penalty units ($93,900), or both.[3]

Upon conviction, a court must impose a sentence of imprisonment of at least 12 months. This is referred to as a ‘mandatory minimum sentence’ as it requires the court to impose a minimum sentence as opposed to leaving it the judge’s discretion.

Proposed subsection 199E(3) provides that proposed subsection 199E(1) does not apply where a person has a reasonable excuse for refusing or failing to comply with the removal pathway direction, though the following are not considered a reasonable excuse:

• a genuine fear of persecution or significant harm
• a claim to non-refoulement
• a belief that the person will suffer other adverse consequences.

As noted by the Scrutiny of Bills Committee, the Explanatory Memorandum does not provide any guidance beyond these exclusions as to how the defence of reasonable excuse may be understood and states:

There are restrictions in section 199D on the giving of a removal pathway direction to a non-citizen in relation to whom a protection finding has been made where the direction relates to the country with respect to which the finding was made, or who has made an application for a protection visa that is not finally determined. Those are matters that constrain the Minister’s power to make a direction. However, where no such limitation is engaged, subsection 199E(4) makes it clear that certain subjectively-held fears do not amount to a ‘reasonable excuse’ for the purposes of subsection 199E(3). (p. 13)

According to the Department of Home Affairs:

The intention of this provision is to ensure that where a person’s protection claims have already been considered as part of a protection visa process, and found not to engage Australia’s non-refoulement obligations, including because their fears of being subjected to harm are not well-founded, the person should not be able to rely on claiming that they still fear harm to excuse their non-cooperation with removal. (Submission 75, p. 14)

The Scrutiny of Bills Committee stated that the inclusion of the reasonable excuse defence ‘may also suggest that the power of the minister to give directions under proposed section 199C may be overly broad’ and ‘the breadth of the term ‘reasonable excuse’ may result in persons complying with directions even when it may be lawful for them to refuse to do so’ (p. 5). The Committee noted that ‘many of the matters that could be taken to be reasonable excuses would have been more appropriately dealt with by better delimitation of the directions which can be lawfully given by the Minister’ (p. 5).

The defendant also bears the evidential burden in relation to the ‘reasonable excuse’ and it is therefore the responsibility of the non-citizen to provide evidence relating to whether they have a reasonable excuse for their non-compliance (proposed subsection 199E(3)). As noted by the Law Council, ‘certain matters that may be relevant to a reasonable excuse defence, such as whether compliance with a removal pathway direction is practically impossible, are not peculiarly within the knowledge of a defendant’ (Submission 71, p. 19).

According to the Department of Home Affairs:

Since not complying with a direction will be a criminal offence, operational guidance will be developed to ensure that directions to compel the provision of information are reasonable in the circumstances of the person. Since a person cannot be directed to provide information to a protection finding country, or while their protection visa application is on foot, the guidance could, for example, deal with the situation where a person has made credible new claims in respect of that country that are under consideration. (Submission 75, p. 14)

However, given the significant penalties attached to this offence, it is unclear why these matters have not been set out in the primary legislation instead of being set out in operational guidance.

Key issues

Broad category of people who may be ‘removal pathway non-citizens’

Stakeholders have raised concerns about the broad nature of the power to prescribe lawful non-citizens without any apparent connection to a removal pathway as ‘removal pathway non-citizens’.[4] The Explanatory Memorandum does not provide any clarity on what categories of lawful non-citizens may be prescribed in the future. As noted by the Law Council, the scope of this power:

… might include holders of refugee or humanitarian visas who have not committed an offence, not failed to pass the ‘character test’—not done anything wrong at all—and are yet made liable to a direction. It might include persons who have established themselves in Australia for years and have Australian citizen children. It may include, for example, the holders of certain classes of business visas, making the holders liable to comply with removal directions. (Submission 71, p. 9).

Stakeholders were also concerned about the implications for people assessed under the fast track process by the Immigration Assessment Authority (which is due to be abolished by the intended passage of the Administrative Review Tribunal Bill 2024) who were subsequently refused a protection visa.[5] The PJCHR has previously considered that the fast track review process was incompatible with Australia’s obligations of non-refoulement (discussed further below) and noted that UNHCR has considered it ‘to have been a defective mechanism by which to assess protection claims’ (pp. 29–30).

The Scrutiny of Bills Committee also raised significant concerns with the decision to allow for additional categories of people to be prescribed by way of delegated legislation, noting the seriousness of the penalties for failing to comply with a removal pathway direction and the lack of justification provided in the Explanatory Memorandum (p. 3).

Risk of refoulement

Under international law, refugees and asylum-seekers are entitled to two partially overlapping sets of rights: those which States are obliged to respect, protect and fulfil under international human rights law, and the specific rights of refugees arising from the Convention Relating to the Status of Refugees and its 1967 Protocol.

The principle of non-refoulement (non-return) applies both in respect of recognised refugees, and those whose claims for protection have not been finally determined (asylum seekers). Therefore, Australia has an obligation to not return asylum seekers to their country of origin until their claim for protection has been determined.[6] According to UNHCR:

To prevent refoulement, return of people who have claimed international protection should only be pursued for those whose claims have been refused by a final decision through a formal refugee determination process that is fair and in line with international standards. Such a process needs to involve the examination of complementary forms of protection under international human rights law. There should also not be any additional grounds under international human rights law or compelling humanitarian reasons for the person’s continued stay in the host country. (Submission 65, p. 2)

Stakeholders have raised concerns that the new power to issue removal directions may ‘result in people who do have protection needs being forced to return to countries where they would be at risk of persecution or other forms of serious harm’ (Submission 11, p. 4). The PJCHR cautioned that there may be a risk that some individual cases may engage the absolute prohibition against non-refoulement, particularly those individuals that were assessed under the ‘fast track’ process (pp. 28–29). The Human Rights Law Centre (HRLC) noted that ‘while the Bill does not permit a direction to be made requiring a person to assist in their removal to a country in respect of which they are owed protection, this safeguard does not apply to people whose claims for protection have never been properly or fairly assessed under the fast-track system’ (Submission 18, p. 9).

UNHCR stated that the ‘exemptions afforded under the current Bill by proposed subsection 199B(3) further embeds the flawed premise that subsection 197C(3) provides adequate protection against refoulement’ and that safeguards are needed to ensure that removal pathway directions are not given in circumstances which would be inconsistent with Australia’s international human rights obligations (Submission 65, pp. 8, 16). Stakeholders also raised concerns regarding the scope of the ‘reasonable excuse’ defence to the proposed new criminal offence of not complying with a removal pathway direction (proposed section 199E). This defence does not apply if the person ‘has a genuine fear of suffering persecution or significant harm if removed to a particular country’. Nor if the person ‘is, or claims to be’ a refugee, or if they believe they would suffer ‘other adverse consequences’. The Law Council queried ‘why the Australian Parliament would not want to ensure that there can be no doubt about whether such risks exist’ (Submission 71, p. 17).

Stakeholders have also questioned whether the requirement to comply with a removal direction may itself create a situation of a real risk of significant harm if a person is removed to that country. For example, the Law Council outlined a scenario where compliance with a direction may lead to a future risk of persecution:

A removal pathway direction under section 199C can include requiring a person to provide documents, attend an interview with or report to any person, which would include authorities of the country of origin. It is that act, forced by the direction, that could precipitate the attention of authorities of that country to the person which may not otherwise have been raised, by reason of that country conducting checks of social media (a practice which the Department of Home Affairs also uses for people wanting to enter or re-enter Australia), or making enquiries of Australia about the nature of protection claims made (which the Migration Act does not prohibit Australia from disclosing). (Submission 71, p. 13)

Implications for the rights of children

Stakeholders have raised significant concerns regarding the impact the provisions of the Bill will have on children.

For example, the AHRC recommended in the first instance that the provisions allowing for a removal pathway direction to be provided to the parent or guardian of a child be deleted and alternatively, additional safeguards would be required for the Bill to be potentially compliant with the Convention on the Rights of the Child (Submission 68, p. 11). The Kaldor Centre also argued that the provisions in their current form contravene the Convention on the Rights of the Child (Submission 11, p. 5).

In its submission, the Law Council stated:

Instead, extraordinarily, parents are coerced—under the threat of criminal sanction and at the risk of mandatory imprisonment—to themselves undertake the steps for removal for their children, regardless of their fears for their wellbeing. If a parent refuses to comply because he or she genuinely fears for the persecution of a child if removed, the mandatory imprisonment provision in subsection 199E(2) will result in forcible separation of the family. By way of example, had such legislation been in place when the Nadesalingam family were in detention, they would have been forced under the Removal Bill to undertake such steps for their children and would then have been removed from Australia. (Submission 71, p. 12)

Stakeholders have also raised concerns about the impact the Bill will have on family unity, with UNHCR arguing that the protections currently provided for in the Bill are inadequate to appropriately preserve and protect family unity (Submission 65, pp. 16–17). The PJCHR stated that it was unclear whether the impact of the person’s removal from Australia on their family members would constitute a ‘reasonable excuse’:

The statement of compatibility further states that a person may argue that they have not complied with a removal pathway direction because removal would separate them from family members. This would appear to suggest that a person may raise a separation from their family members as a ‘reasonable excuse’ in the context of a prosecution being raised against them for an offence under proposed 199E. However, it offers no indication as to whether it is intended that such an argument would constitute a reasonable excuse in the context of the offence, or the likelihood that such an argument would be successful in court. (p. 28)

A number of stakeholders recommended that the Bill be amended to require the Minister to consider the best interests of the child and/or the right to respect for the family prior to making a removal direction.[7]

The application of disproportionate criminal penalties and use of mandatory minimum sentences

Many submissions described the introduction of criminal offences for certain persons who refuse or fail to comply with a valid removal pathway direction as ‘criminalisation’ and ‘disproportionate’.

For example, the AHRC expressed concern that these provisions:

… [are] not in the spirit of [Global Compact for Safe, Orderly and Regular Migration], nor recommendations by the United Nations High Commissioner on Refugees, to penalise individuals who have arrived in Australia from State parties who are failing to uphold their obligations under international norms. Criminalising the failure to act in this context is unprecedented. The Commission has been unable to find any similar provisions in the laws of comparable jurisdictions within the limited time available to provide this submission. (Submission 68, p. 14)

Dr Abul Rizvi, former Deputy Secretary of the Department of Immigration, argued in evidence to the Committee that the High Court decision in the case of AZC20 had ‘created the incentive for noncitizens to not cooperate in their removal’ (see also Anne Twomey’s article noted above). He stated:

There must be some penalty for noncooperation. The question is whether the penalties for noncooperation as proposed in this bill are proportionate to ensuring cooperation in the vast majority of circumstances and whether penalties are the only or best option in all cases. In some cases, it may be better to also offer incentives for return, such as reintegration assistance, that may also be better from a taxpayer perspective. The jail options should be used as a last resort, such as in criminal deportee cases. Against that background, the proposal in this bill for a minimum mandatory sentence of 12 months may be excessive. (p. 30)

As discussed above, stakeholders have also questioned whether the imposition of these penalties will give effect to the Government’s policy intentions. The Law Council noted that ‘Ironically, the criminalisation of non-compliance may actually make it much harder to remove persons in some cases, because the receiving country will be asked to receive a person who has criminal convictions’ (Submission 71, p. 14). The AHRC argued that being faced with the prospect of detention in a criminal setting is unlikely to be viewed as a more effective motivator than either remaining in mandatory immigration detention or being subject to Australia’s offshore processing regime (Submission 68, p. 15). The Commonwealth Ombudsman shared similar concerns, noting that they had ‘recorded instances of detainees expressing a preference for incarceration over immigration detention due to the certainty and better range of meaningful activities that can be attached with a prison term’ (Submission 105, p. 3).

Stakeholders have also strongly opposed the inclusion of mandatory minimum sentences. The Asylum Seeker Resource Centre argued that ‘The Bill’s imposition of a mandatory minimum sentence is unprecedented and disproportionate to the nature of the offence of non-compliance with a ministerial direction’ (Submission 59, p. 10). According to the Kaldor Centre, ‘there is no precedent in Australian law for a failure to comply with a direction resulting in mandatory imprisonment – not even in the context of terrorism offences’:

The only comparable provisions involve a failure to comply with police directions to move on under various state laws, which establish a couple of offences (concerning failure to disclose identity) that may be punished by up to 12 months’ imprisonment. In some states, reportable offenders (such as child sex offenders) who fail to produce electronic devices when directed by police may face up to five years’ imprisonment. However, across all these existing provisions, the gaol terms are maximum sentences, not mandatory minimum sentences. (Submission 11, p. 7)

In its report, the Scrutiny of Bills Committee reiterated its concerns that the use of such sentences ‘impedes judicial discretion’ as ‘courts should not be limited in their ability to impose sentences with regard to the circumstances of the offending’ (p. 4). The PJCHR also stated that the imposition of a mandatory minimum sentence of imprisonment for non-compliance with a removal pathway direction ‘engages and limits the right to liberty and right to a fair trial’ (p. 20).

In its submission, the Law Council also compared the maximum penalty (5 years imprisonment) with other offences in the Criminal Code which carry the same maximum penalty, which include:

• corrupting benefits given to, or received by, a Commonwealth public official
• abuse of public office
• using a carriage service to menace, harass or cause offence
• using a carriage service for violent extremist material.

The Law Council argued that this demonstrates ‘the unjustifiably high nature of the proposed maximum penalty’, noting it ‘does not sit well with the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers’. The Law Council also noted ‘the availability of less disproportionate civil penalty provisions under the Migration Act’ (Submission 71, pp. 14–15).

Reversing a protection finding

Key provisions

As discussed above, subsection 197C(3) of the Migration Act provides that unlawful non-citizens cannot be removed to a country if they have made a valid application for a protection visa that has been determined, and in the determination process a protection finding was made (regardless of whether or not a visa was granted).

Section 197D establishes a mechanism whereby the Minister can essentially revisit the decision to make a protection finding with respect to an unlawful non-citizen under subsection 197C(3). These provisions were inserted as Government amendments to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 during debate on the Bill in the House of Representatives. As noted by the Department of Home Affairs, ‘At present, it is only possible to revisit a protection finding using the mechanism in section 197D of the Migration Act for an unlawful non-citizen’ (Submission 75, p. 17).

Items 3–7 of Schedule 2 of the Bill will amend sections 197C and 197D to provide that a protection finding can also be revisited in relation to a lawful non-citizen who holds a visa as a removal pathway non-citizen.

As explained by the Department of Home Affairs:

Following the High Court’s decision in NZYQ, the Government now faces circumstances in which this power needs to be expanded to certain non-citizens who hold a visa – particularly BVR holders. The Bill therefore proposes amendments to allow the Minister to revisit the protection findings of those removal pathway non-citizens who hold a specified type of bridging visa (being a BVR or a Subclass 050 (Bridging (General)) visa who at the time of visa grant satisfied a criterion relating to the making of, or being subject to, acceptable arrangements to depart Australia or another visa prescribed for the purposes).

The affected persons are those who have a protection finding who hold a bridging visa and are on a removal pathway following the refusal or cancellation of a visa and who have, in most cases, completed merits review and judicial review of those visa decisions. Without this amendment, the Migration Act would not provide a means to revisit a protection finding while a removal pathway non-citizen is in the community on a visa. (Submission 75, p. 17)

In the Explanatory Memorandum, the Government refers to this amendment as a ‘minor and technical amendment’; however it would appear that these amendments are significantly expanding the classes of persons for whom the Minister is empowered to overturn a protection decision (p. 3).

Key issues

In considering these amendments, the Scrutiny of Bills Committee commented:

This is clearly a significant and rights affecting matter and it is not clear to the committee why such a power is necessary as it has not been fully explained in the explanatory memorandum. It is also unclear to the committee whether any procedural fairness protections apply in relation to any decisions made by the minister to overturn an existing protection decision. (p. 6)

Stakeholders have also raised significant concerns with these provisions, citing:

• existing concerns with section 197D
• the limited scope to review a person’s refugee status under international law
• the lack of procedural fairness
• the broad nature of the power and limited safeguards
• the lack of justification provided by the Government.

For example, the Human Rights Law Centre stated:

… the Bill seeks to expand upon a power that is already in conflict with Australia’s obligations at international law through amendments that would allow the Minister, in an unspecified process, to unilaterally review protection findings for visa holders, some of whom have been in the community lawfully for years. The proposed power is at large; it is not limited by or referable to considerations ordinarily relevant to the cessation of refugee status, such as the past persecution suffered by the visa holder and the extent of their connection to the community. The proposed expansion of the s 197D power is a matter of grave and serious concern. (Submission 18, p. 11)

UNHCR noted that there very few circumstances in which a person’s refugee status legitimately ceases under the Refugee Convention:

The 1951 Convention does not envisage a loss of status triggered by domestic visa arrangements (such as through visa cancellation on character grounds), nor a requirement for refugees to periodically re-establish their refugee status – either as a result of the grant of temporary protection or effective loss of refugee status as a result of a Ministerial decision under section 197D of the Migration Act.
(Submission 65, 19).

The Law Council questioned the need to provide the Minister with an ‘extraordinary degree of discretion’ to revisit protection findings, particularly given the rushed insertion of section 197D:

We understand that the power to unwind protection findings under section 197D has not, to date, been exercised. The expansion of the power to broader groups in the current context raises concerns about the underlying motivation. Persons who cannot be removed to their country of origin because doing so would contravene a protection finding, but who have been found to fail the criterion for a protection visa in section 36(1)(c) due to previous criminal offending, cannot be indefinitely detained following the High Court’s decision in NZYQ. In this context, a culture of encouraging reconsideration and revocation of protection findings so that a person can be removed is very concerning. It is likely to result in refoulement of persons in need of protection. (Submission 71, p. 27).

The AHRC opposed the expansion of section 197D, though as an alternative recommended amending the Bill to insert objective criteria for the exercise of the power to make a finding that an unlawful non-citizen is no longer a person in respect of whom any protection finding would be made (Submission 68, pp. 21–23).

Designation of removal concern countries

Proposed subsection 199A(2) provides that it is the Parliament’s expectation that a foreign country will cooperate with Australia to facilitate the lawful removal from Australia of a non-citizen who is a national of that country.

Proposed section 199F confers a discretionary personal power on the Minister to designate a country as a ‘removal concern country’, by legislative instrument, if the Minister thinks it is in the national interest to do so.

Before making a designation, the Minister must first consult with the Prime Minister and the Minister administering the Diplomatic Privileges and Immunities Act 1967 (currently the Foreign Minister). While the rules of natural justice will not apply to the exercise of this power, the Minister will be required to table a copy of the designation in both Houses of Parliament within two sitting days after the day the designation is made, including a statement of reasons for making the designation.

The effect of designating a country as a ‘removal concern country’ is that non-citizens from that country who apply for a visa outside of Australia will not be granted a visa. Proposed subsection 199G(2) provides for certain exceptions to this bar on visa applications, including:

• dual citizens of other countries who hold a passport that is in force
• spouses, partners or dependent children of Australian citizens, permanent visa holders or people who are usually residents of Australia
• parents of children in Australia and
• applications for grants of a Refugee and Humanitarian (Class XB) visa.

Proposed subsection 199G(3) provides the Minister with a broad power to determine, via legislative instrument, classes of persons or classes of visa which fall within these exceptions. According to the Department of Home Affairs:

These exceptions would likely include approved diplomatic and consular officers and other international representatives, returning permanent residents of Australia and other persons in respect of whom Australia may have international obligations or commitments, such as international trade obligations. To illustrate, the legislative instrument power could be used to specify the Diplomatic (Temporary) (Class TF) visa, the Temporary Work (International Relations) (Class GD) visa, or the Return (Residence) (Class BB) visa. (Submission 75, p. 16)

The Minister will also have the personal power to lift the bar for particular persons where the Minister thinks it is in the public interest to grant them a visa (proposed subsection 199G(4)).

Key issues

As discussed above in the ‘position of major interest groups’ section, stakeholders have questioned the effectiveness of these amendments in achieving their intended purpose and the risks to international relations that may arise. Stakeholders have also argued that there are less restrictive means of achieving the Government’s policy objectives. For example, the Law Council commented:

… barring visa applications from nationals of entire countries may be considered a sledgehammer response which will affect vast numbers of nationals who are subject to autocratic regimes and have not contributed to government decision-making regarding returning nationals. (Submission 71, p. 22).

The PJCHR noted that ‘no information is provided [in the Explanatory Memorandum] as to why other, less rights restrictive alternatives (such as a bar only on specific visa types) would be ineffective to achieve the stated objective’ (p. 36).

The AHRC examined similar schemes adopted by other countries in its submission to the Legal and Constitutional Affairs Legislation Committee (Submission 68, pp. 19–21). It noted that ‘Unlike the UK and the US, the Bill includes no mandatory factors for the Minister to consider, when they decide to exercise their discretion in the national interest’ and recommended that the Bill, if it is to be passed, be amended to include a set of factors that the Minister must consider prior to designating a removal concern country. The Kaldor Centre raised similar concerns, noting that the US legislation:

… first considers whether a country is being deliberately uncooperative or is just unable to cooperate due to mitigating factors, such as disasters or limited capacity (for example, as a result of law enforcement issues, inadequate records, and/or an inefficient bureaucracy) (Submission 11, p. 9).

The Migration Institute of Australia made a similar recommendation to AHRC and also recommended that proposed subsection 199G(1) be amended to establish ‘that the Minister can deem certain classes of visa applications to be invalid by way of legislative instrument, rather than relying on a blanket ban on all visa applications from citizens of a “removal concern country”’ (Submission 77, p. 4).

Concerns have also been raised regarding the discriminatory impact the provisions may have on certain groups of people. The PJCHR stated:

As this measure would render all applications for visas from nationals of a specific country invalid (subject to some exceptions), it would likely have a disproportionate impact on persons in Australia of that same nationality, and so may engage and limit the right to equality and non-discrimination. (p. 35)

The Human Rights Law Centre argued that the proposed travel ban is ‘both discriminatory in its likely application to only certain countries, and indiscriminate in its extension to the vast majority of people from those countries’:

While the government has failed to disclose the countries on its blacklist who may be subject to the travel ban, there has been widespread speculation that Iran is likely to be considered due to the Iranian government’s unwillingness to facilitate the non-voluntary return of its nationals. The Bill does not explain why the 70,899 people living in Australia who were born in Iran, of which over 60% are Australian citizens, should be kept apart from their families. Or indeed, why people of any particular nationality should be separated from their families due to the policies of foreign governments. (Submission 18, p. 13)

Concluding comments

While the High Court has clarified that the continuing detention for a non-punitive purpose that is occurring because of a voluntary decision of the detainee is lawful, the expediated passage of the Bill through Parliament risks creating unintended consequences and limits the ability for appropriate parliamentary scrutiny and debate.