Dissenting report by Coalition Senators
1.1The Coalition recognises the need to protect the integrity of Australia’s immigration system, and the need to ensure the levers available to Government are fit-for-purpose in the current environment.
1.2While the Coalition supports the policy intent of this Bill, the Coalition continues to hold significant concerns about potential unintended consequences created by a rushed process and a persistent refusal by the Government to materially engage with substantive concerns raised by multiple stakeholders throughout the inquiry process.
1.3Firstly, the Department of Home Affairs has acknowledged the Bill has the potential to serve as a pull factor for illegal boat arrivals, but the Government has failed to articulate how it will adequately mitigate this risk. Not only has the Government refused to commit additional resourcing commensurate to this additional risk, resourcing for Operation Sovereign Borders is in fact going backwards on multiple metrics. This includes a reduction in funding of $436.5 million over the forward estimates, a decrease in aerial flying hours and maritime patrol days, and a reduction in funding for strategic communications – which is the core of the Government’s strategy to mitigate the pull factor created by this legislation.
1.4Secondly, the truncated ad hoc process for public consultation and parliamentary scrutiny has created significant angst amongst many stakeholders who fear the unintended consequences of this legislation – consequences that have not been sufficiently considered in the Majority Report. This is most acute for the many diaspora groups who contributed to the inquiry who raised significant concerns that the Government has not considered the impacts on families and communities this legislation might have. The fact that the Majority Report proposes no amendments to the Bill shows a flagrant disregard for the views of these groups who have earnestly engaged with the inquiry process despite the significant time constraints.
1.5Finally, the Coalition continues to hold concerns about the scope of the powers contained in the bill, and the lack of sensible checks and restraints that should accompany such far-reaching legislation. These concerns go to the lack of clarity around who would be caught by this bill, lack of safeguards; transparency and parliamentary oversight for the ministerial powers contained in the bill, and human rights concerns – particularly as they relate to the interests of children and families.
1.6This dissenting report provides a comprehensive treatment of these issues, and provides a number of good-faith recommendations, focused on additional safeguards and improvements to the operation to the bill in response to the concerns raised in this inquiry, for the Government’s consideration.
1.7The Coalition will continue to hold the Labor Government accountable for its rushed and reckless approach to this legislation, and will continue to advocate for the Government to honestly and openly engage with the plethora of serious issues raised by stakeholders throughout the consultation process.
1.8A full list of recommendations is provided at Appendix A at the end of this dissenting report.
1.9The Coalition supports the general policy intent of the Bill which is described in paragraphs 1.8 of the Majority Report and in section 3 of the submission of the Department of Home Affairs; namely: ‘to strengthen the tools available to the Government to effect removal of non-citizens who have no right to remain in Australia’.The Coalition’s position in this regard has informed its review of the Bill.
1.10During the term of this Labor Government, the Coalition has raised numerous concerns with respect to the management of Australia’s immigration system, including:
(a)net migration numbers being at unsustainable levels given housing constraints – with Labor’s ‘Big Australia’ policy on track to bring more than one million migrants into Australia in their first term in government;
(b)the release of hardcore criminals who were held in immigration detention, including seven murderers, 37 sexual offenders, and 72 people who have committed very serious crimes in the community and the failure of the Labor Government to apply for preventative detention orders under powers approved by the Parliament last year in order to protect the community;
(c)the dismantling of Operation Sovereign Borders after the 2022 election by removing one of the key three pillars; namely, abolishing temporary protection visas;
(d)a 20 per cent reduction in aerial surveillance and reduced on-water patrol days by the Australian Border Force;
(e)an influx of more than 311 illegal arrivals on at least 13 vessels since the election; and
(f)budget cuts of $436.5 million to border security over the next four years. These are all matters which need to be addressed by the Labor Government.The Coalition will continue to hold the Labor Government accountable for its failures in managing Australia’s immigration system.
1.11As it has done throughout the term of this Labor Government, the Coalition will also constructively review any policy proposals put forward by the Labor Government and provide support where the Coalition believes this is in the best interests of Australia.
1.12This report has been prepared following the conclusion of an inquiry by the Legal and Constitutional Affairs Committee which was strongly resisted by the Labor Government.Other than Labor Senators, every Senator voted for the holding of this Inquiry.[1]
1.13At a press conference held on 27 March 2024, the relevant Labor Government Ministers attacked the Opposition for supporting a motion referring this Bill to the Legal and Constitutional Affairs Committee for inquiry.[2] In attacking the Opposition, the Ministers were also (in effect) attacking all Senators who supported the referral of this Bill to an inquiry.
1.14The substantial number of submissions to the inquiry and the content of this report proves that the Ministers were wrong in attacking Senators seeking greater scrutiny of this Bill. The Ministers were wrong in seeking to push this Bill though the Parliament in 36 hours. The Ministers were wrong in seeking to deny stakeholders, including those with extensive experience in dealing with the issues the subject of the Bill and communities who would be impacted by the provisions of this Bill, an opportunity to have their say. The Labor Government was wrong in seeking to deny the Senate the opportunity to hold an inquiry and to consider the numerous issues of substance raised during this inquiry.
1.15For the following reasons, the provisions of this Bill warranted very close scrutiny:
the importance of the effectiveness of the provisions in the Bill in promoting the integrity of Australia’s migration system;
the imposition of mandatory minimum criminal penalties in the Bill;
the scope of people subject to the powers contained in the Bill, including children and people who have not committed any serious crime (i.e. the scope of this Bill includes people outside the NZYQ cohort and people who are not currently in detention);
the unprecedented power for the Minister to declare an entire country a so called: ‘removal concern country’ with material impacts upon Australian communities with connections to those countries;
the risk of unintended consequences arising from the provisions of the Bill, including in relation to the designation of a country as a: ‘removal concern country’; and
the significant scope of the ministerial powers as it relates to the removal directions and the designation of removal concern countries and the very limited safeguards provided for under the Bill.
1.16The reports of the Scrutiny of Bills Committee (which provided 8 pages of commentary)[3] and the Parliamentary Joint Committee on Human Rights (which provided 28 pages of commentary)[4] evidence the numerous scrutiny issues connected with the Bill.Further, it is noted that the report of the Parliamentary Joint Committee on Human Rights was released on 17 April 2024, more than two weeks after the Labor Government sought to put the Bill to a vote in the Senate.If the Labor Party had have succeeded in forcing this Bill to a vote in March, the Senate would not have had the benefit of the comments from one of the key scrutiny committees of the Parliament.
1.17As noted in paragraph 1.3 of the Majority Report, the committee received and published 118 submissions from organisations in response to the inquiry.Further the committee has received hundreds of submissions from individuals which have not yet been published.[5] All of this supports the decision of the Senate that an inquiry be held into the Bill.
1.18It is noted that the Majority Report proposes no amendments to the Bill. This is surprising. We are concerned that the Majority Report fails to engage with the numerous issues raised by stakeholders and multicultural communities in relation to the Bill. This is emblematic of how the Labor Government has managed this legislative process – a lack of consultation and engagement.
1.19For the reasons stated in this Dissenting Report, if the Bill is to be passed, we believe that amendments should be made to the Bill to address material issues raised during this inquiry.The Labor Government needs to engage with the material issues and concerns that have been raised in this inquiry.
1.20Given its position to date, it is an open question as to whether the Labor Government is prepared to engage in a meaningful manner to make material improvements to the Bill to address the substantial concerns which have been raised during the scrutiny process.To do so, would be to acknowledge that the Labor Government was wrong – profoundly wrong – in opposing this scrutiny process.The Coalition hopes that the Labor Government will engage in good faith and in a constructive manner to improve the Bill and to address a number of the material scrutiny concerns which have been raised.
1.21It has been disappointing that due to the constraints imposed by the Labor Government, the Inquiry has suffered due to a lack of time and an inability to call all the witnesses who would have been able to further assist the inquiry.This includes parties who made submissions and sought an opportunity to be called as witnesses, including individuals who will be impacted by the Bill (if it is passed).
1.22The Coalition sought additional time for hearings so that further witnesses could be called.That was denied by the Labor Government.The Labor Government should explain to potential witnesses who requested an opportunity to appear before the inquiry why the Labor Government chose to hold limited public hearings thereby denying them that opportunity to be heard.They are owed an explanation.
1.23In addition, the Coalition Senators sought to call representatives of the following Departments to give evidence to the Committee:
Department of Prime Minister and Cabinet;
Department of Foreign Affairs; and
Department of the Attorney General.
1.24Again, this opportunity was denied.This is extremely disappointing; especially when one considers the following:
The Committee was denied the opportunity to hear from the Department of Foreign Affairs in the context of legislation which would provide the Minister for Home Affairs the power to designate an entire country as a removal concern country with material consequences for the relationship between Australia and that foreign country.
The Committee was denied the opportunity to hear from the Department of Attorney General in the context of legislation which would impose a mandatory minimum criminal penalty of 12 months imprisonment for an offence.The Committee was denied the opportunity to engage in a detailed discussion with the Department with respect to the structure of the offence provisions and the ‘reasonable excuse’ defence.
1.25No explanation has been provided by the Labor Government for its failure to make officers of these Departments available.
1.26The time for parties to prepare submissions and respond to questions on notice has been very abbreviated.None of this is acceptable in the context of the serious nature of the powers contained in the Bill nor in the context of the potential impact of this Bill upon vulnerable people and communities.
1.27The Scrutiny of Bills Committee – one of the standing committees of the Senate which applies scrutiny principles in a non-partisan manner – stated (unanimously):
The committee is of the view that truncated parliamentary processes by their nature limit parliamentary scrutiny and debate.This is of particular concern in relation to bills that may seriously impact on personal rights and liberties…
The committee notes that the standing orders of both houses of the Parliament with respect to legislation were designed in order to provide members of Parliament with appropriate time to consider and reconsider the proposals contained in the bills.
While the procedure to be followed in the passage of legislation is ultimately a matter for each House of Parliament, the committee reiterates its consistent scrutiny view that legislation, particularly legislation that may trespass on personal rights and liberties, should be subject to a high level of parliamentary scrutiny.[6]
1.28The Scrutiny Committee raised a number of scrutiny concerns with respect to the Bill, including in relation to: (a) significant matters being contained in regulation, not legislation; and (b) broad discretionary powers.
1.29The concerns of the Scrutiny Committee were echoed by a number of other organisations who made submissions.
1.30The Law Council of Australia stated:
The Law Council of Australia also reiterates its objection to the rushed process for passage of this Bill, which has not allowed time for the kind of scrutiny required of such far-reaching changes to the law – changes potentially affecting tens of thousands of migrants (see further below).The Government’s initial intention, as we understand it, was to pass the [Bill] with the support of the Opposition and with no committee scrutiny at all.When it became clear that was not tenable, an out-of-session meeting of this Committee was held to hear evidence from the Department of Home Affairs.Only after concerns were raised, including by some members of this Committee was the present inquiry convened.Even then, the timeline for submissions and opportunity for hearing from witnesses has been limited.
The Law Council recommends that, particularly for new laws with significant impact on rights and liberties, proper committee scrutiny (including by this Committee and the PJCHR) be the default.This default position should only be departed from in times of genuine emergency.Given the lack of justification provided to date for the measures in this Bill the Law Council does not consider there to be such an emergency in this instance.[7]
1.31The Refugee Advice and Casework Service stated:
RACS is grateful that the Bill is the subject of Parliamentary Scrutiny by way of this inquiry, given the very significant implications the Bill has for individual rights and liberties as well as Australia’s national interest and international reputation.
RACS is concerned that rushing such radical and problematic legislation without adequate scrutiny or consultation with the communities it will impact is at odds with open and transparent government and could lead to serious implications for human rights as well as unintended drafting consequences.[8]
1.32The Asylum Seeker Resource Centre submitted:
The ASRC echoes the concerns raised by the Senate Standing Committee for the Scrutiny of Bills regarding the Government rushing this Bill through Parliament outside usual parliamentary processes, especially in light of the significant impact on people's rights and liberties.The Government's trend of hurriedly passing complex legislation without adequate scrutiny or consultation, which significantly impacts the rights of refugees, people seeking asylum and their families, is troubling. This type of government decision-making jeopardises our democracy and public confidence in the government's commitment to transparent governance. Plainly, it must stop.[9]
1.33The submission of the Department of Home Affairs makes it clear that there was no consultation with any organisations or stakeholders external to the Government prior to introduction of the Bill into the Parliament.The “Consultation” section of the Department’s submission states:
The Department of Home Affairs has consulted relevant agencies in developing specific measures, including the Attorney-General’s Department, the Department of Foreign Affairs and Trade, the Australian Federal Police and the Department of the Prime Minister and Cabinet.[10]
1.34In answer to a question on notice from Senator Paterson, the Department advised:
Departmental officials did not hold meetings with community representatives in relation to the Bill in advance of its introduction to Parliament.[11]
1.35The Labor Government should reflect on the deep concern this legislative process has generated in many diaspora communities throughout Australia.The lack of prior consultation has meant that many communities have been blindsided by the introduction of this Bill.This is no way to make laws which would have far reaching consequences and impact some of the most vulnerable people in Australia.At the very least, this inquiry process has provided an opportunity for those communities to be heard prior to this Bill being considered by the Senate.
1.36In relation to the lack of prior consultation, the Refugee Advisory Council stated:
The Panel is an independent group of people with lived experience of forced displacement as well as specialised policy, advocacy and legal expertise.The Panel is intended to provide a formal mechanism for meaningful refugee participation in Australia’s engagement with the international refugee protection system.The Panel works to ensure that refugee perspectives, knowledge and experiences are consistently given a meaningful voice in multilateral settings relating to refugee issues…
Despite its formal advisory role, there was no consultation with the Panel ahead of introduction to the Parliament of [the Bill].After hearing from the media about the Government’s push to rush the Bill through parliament within 36 hours and without any debate or consultation, the Panel wrote to the Minister for Immigration, Citizenship and Multicultural Affairs on 27March 2024, strongly opposing its provisions…[12]
1.37Given the lack of prior consultation, it is even more concerning that the Labor Government sought to prevent this inquiry from occurring.
1.38This report now turns to the provisions of the Bill.
1.39A key question for consideration is the scope of the Bill.Who will be subject to the giving of a removal pathway direction by the Minister?This is especially important because the consequence of failing to comply with a removal pathway direction is the imposition of a mandatory minimum criminal penalty of 12 months imprisonment.
1.40Section 199B provides as follows:
(g)Each of the following is a removal pathway non-citizen:
(i)an unlawful non-citizen who is required to be removed from Australia under section 198 as soon as reasonably practicable;
(ii)a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa;
(iii)a lawful non-citizen who:
(1)holds a Subclass 050 (Bridging (General)) visa; and
(2)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;
(iv)a lawful non-citizen who holds a visa prescribed for the purposes of this paragraph.
1.41In his second reading speech, the Minister for Immigration, Citizenship and Multicultural Affairs stated:
There are currently noncitizens in Australia who have exhausted all visa pathways to stay in Australia, who have been found not to be owed protection, but who refuse to engage with their home country to undertake actions like applying for a passport or attending meetings with officials from that country.[13]
1.42The Department reflected the phrase: “exhausted all visa pathways” (albeit with some minor variation) in its submission to this inquiry.The Department stated:
Without legislative amendments, the Migration Act would not provide a means to robustly and appropriately manage a non-citizen on a bridging visa granted to resolve their immigration status in the community while pursuing their departure or removal.These are people who have exhausted all avenues to remain in Australia, and in respect of whom the Government is lawfully entitled to, or is required under the Migration Act to, progress their departure or to seek removal…[14]
Importantly, this Bill does not expand the cohort of people who are eligible for removal from Australia.The proposed legislative amendments apply only in respect of non-citizens who have exhausted all avenues to remain or for whom the Government is lawfully entitled or indeed required under the Migration Act to seek removal.[15]
1.43The Bill would potentially apply to the approximately 150 persons who fall within the cohort released from detention following the NZYQ case and were granted a Removal Pending Bridging Visa.As stated above, the NZYQ cohort includes non-citizens with serious criminal convictions.It was in the context of this cohort that the Senate passed the Migration Amendment (Bridging Visa Conditions) Act 2023 which imposed a mandatory minimum criminal penalty of 1 year imprisonment for failing to comply with monitoring conditions, failing to comply with a curfew requirement (remaining at an address at notified times) or failing to comply with requirements relating to a monitoring device.[16]
1.44The Bill would also potentially apply to a further estimated 150 to 200 unlawful non-citizens in immigration detention in Australia who the Department describes as follows:
There are currently between 150 to 200 unlawful non-citizens in immigration detention in Australia who have no lawful basis to remain in Australia and who are refusing to cooperate with efforts to remove them from Australia.There is a clear need to address removal of this cohort and ensure Australia’s migration laws and the expectations of the Australian community are well understood.[17]
1.45The Department then comments on a further cohort of non-citizens covered by the Bill as follows:
There are additionally some bridging visa holders in the community with conditions relating to their removal from Australia who also have no valid reason for further stay in Australia and who are refusing to cooperate with removal efforts….
The amendments in this Bill are therefore directed towards those non-citizens who have exhausted all options to stay in Australia on a substantive visa but who do not cooperate with our efforts to remove them and as a consequence cannot currently be removed from Australia.[18]
1.46In relation to the number of people who may be captured by the Bill (including the cohort referred to immediately above), in an answer to a question on notice asked by Senator Paterson on 26 March 2024, the Department responded as follows:
As at 31 January 2024, 25,533 people held Bridging E visas (BVEs). Of those individuals, 4,453 had BVEs granted on the basis that the non-citizen satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.
The 4,453 people noted above are in various stages of engagement in the departure and removals pathway, including preparations to depart voluntarily.
The Department estimates that approximately 1,200 people from this cohort may require cooperation to issue a travel document, or may not be able to be involuntarily returned and therefore are required to depart voluntarily.[19]
1.47In a follow up question on notice asked by Senator Paterson on 14 April 2024 (which is restated in full for ease of reference), the following response was provided by the Department:
Senator Paterson:
The department gave evidence to this committee that the removal directions powers could apply to about 4,400 people but that the intention of the government is to only exercise these powers to a subset of 1,200 of that total cohort who may have issues with cooperating with their departure. How many in this cohort have a serious criminal record?
Answer:
As at 31 March 2024, there were 4,463 Bridging E visas (BVEs) in effect on the basis that the holder satisfied subclause 050.212(2) of Schedule 2 to the Migration Regulations 1994 (referred to as a ‘departure ’BVE', where the BVE has been granted to a person to facilitate a departure from Australia).
Of those noted above, as at 31 March 2024, it was estimated that approximately 1,218 BVE holders may have issues obtaining a travel document or would require cooperation from the individual to issue a travel document – subject to their individual circumstances, and pending the finalisation of any other immigration processes. This number was provided as an estimate of an example cohort and to provide an example of how the Bill may be applied. Each individual’s ability to obtain a travel document will depend on their individual circumstances, including whether they engage in voluntary departure from Australia.
This data request is unable to be provided within standard data reporting. The data is unable to be manually collated in the allocated time.[20]
1.48Hence, the Department of Home Affairs was unable to provide an answer to the question regarding how many of the cohort of 1,218 BVE holders may have a serious criminal record.
1.49In answer to a question on notice from Senator Scarr in relation to the scope of the Bill, the Law Council of Australia stated:
Finally, it remains unclear how many people may fall within the category set down in proposed paragraph 199B(1)(c). We note that the Department indicated in their evidence that 4,463 people may fall within it but, based on pipelines known to the Migration Law Committee of the Law Council’s Federal Dispute Resolution Section, the figure is likely to be far greater.
According to the latest information available, 2,466 people in the ‘legacy caseload’ are likely to be subject to removal directions, and up to 29,571 people who have been refused a permanent protection visa may also be directly affected or affected if they do not engage in removal processes after these changes come into effect.[21]
1.50Following the hearing on 15 April 2024, Senator Scarr put a number of questions on notice to each of the Law Council of Australia, the Human Rights Law Centre, the Australian Human Rights Commission and the Kaldor Centre for International Refugee Law, including in relation to whether or not the scope of section 199B was limited to: ‘people who have exhausted all avenues to remain in Australia’ as submitted by the Department of Home Affairs. A number of concerns were raised.
1.51The Australian Human Rights Commission responded:
The Commission recognises the Department has provided evidence as to the intent of the legislation to only apply to those on a removal pathway.However, the Commission is concerned that the drafting of the Bill is insufficiently explicit to alleviate concerns that people could be captured by the legislation, who are not intended to be.[22]
1.52The Australian Human Rights Commission then gave three examples to support its concern:
A person granted a Bridging E Visa on the ground that the person is making acceptable arrangements to depart from Australia where there is no such intention or expectation.For example, a woman who has been the victim of domestic violence, has Australian citizen children, but does not have a visa in her own right.
A person who is statutorily barred from applying for a Bridging E Visa and the Minister has not (thus far) ‘lifted the bar’ to allow an application for a visa.They may be waiting for their case to be referred to the Minister. This person may have proceedings on foot with respect to their protection claims, but could be captured unintentionally by the legislation.
An unlawful non-citizen is in detention with judicial review proceedings on foot.Their visa application may have been rejected and ‘finally determined’ for the purposes of merits review, but they still have judicial review proceedings on foot.
1.53Whilst the Australian Human Rights Commission is of the view that the Bill should not be passed, it proposed two amendments to address the issue.First, amending the definition of “removal pathway citizen’ so that it explicitly excludes any person who had judicial review proceedings on foot or who has any other basis to remain in Australia (e.g. a family court proceeding).Second, insert a procedural fairness step whereby a person is given notice that the Minister is considering issuing a removal pathway direction.This would then provide an opportunity for the person to explain why their removal is not appropriate.[23]
1.54In responding to the same question, the Human Rights Law Centre advised:
We do not agree that the Bill is limited to people who have exhausted all avenues to remain in Australia or to people the government is entitled to remove from Australia.[24]
1.55In relation to the categories of visas referred to in section 199B, the Human Rights Law Centre advised:
None of these categories are contingent upon a person having first exhausted all avenues to remain in Australia.Instead the categories are framed exclusively by reference to a person’s current visa status.Because of this, all of the categories could include people who have pending migration processes…[25]
1.56The Human Rights Law Centre then provided case studies to support its argument:
(a)A person whose protection visa application was refused through the ‘fast track’ process is seeking judicial review through the courts.Due to the operation of the statutory bar in section 46A of the Migration Act, the person is not able to apply for a bridging visa so could become subject to the proposed directions power.(In this regard, it should be noted that in its response to questions on notice, the Kaldor Centre submitted: ‘From 2015 to 2023, 37% of judicial review applications relating to decisions made by the Immigration Assessment Authority (‘IAA”) were successful, resulting in cases being remitted back to the IAA for reconsideration’[26] – these statistics heighten the importance of giving due consideration to outstanding judicial review applications in relation to IAA ‘fast track’ determinations).
(b)A migrant worker who is exploited and bullied by an unscrupulous employer.He has successfully obtained compensation from the previous employer.He is seeking Ministerial Intervention to stay in Australia.
(c)A woman who is a victim-survivor of domestic violence is waiting permission from the Minister to make a further protection visa application that raises new claims relating to family violence and her fear of being the victim of an honour killing if she is returned to her country of origin.While awaiting Ministerial intervention, she has been granted a Bridging Visa E on departure grounds and would be considered a removal pathway non-citizen.
(d)An Afghan asylum seeker who has sought permission from the Minister under section 48B of the Migration Act to lodge a new protection visa application due to the increased risk of harm that he faces in Afghanistan following the fall of Afghanistan to the Taliban.In the meantime, he has been given a direction requiring him to facilitate his departure to Afghanistan.In relation to this scenario, the Human Rights Law Centre further advises: ‘it is deeply concerning that the Department’s advice to people…who have been failed by the fast-track system is to lodge a request for ministerial intervention, despite the Department presumably being aware that a pending request would not prevent the person from being issues a removal pathway direction’.[27]
1.57The Human Rights Law Centre also argues:
It is also important to clarify that the directions power is not limited to people who are subject to removal…. Under s.198 of the Act, the government’s power to remove a person from Australia is only enlivened with respect to people who do not hold a visa (‘unlawful non-citizens’) and only under certain circumstances.But people in the second, third and fourth categories are all visa holders for whom the power to remove is not presently engaged…
If the power to issue removal pathway directions was intended to be limited as identified in the Department’s submission, proposed section 199B would need to be entirely re-drafted so that visa status was not the exclusive criterion.However, we remain of the strong view that no amendments would render the Bill compatible with human rights…[28]
1.58The Kaldor Centre made a number of observations in relation to the question put to them.First, that there is a difference between people who are not entitled to international protection and can be removed from Australia consistent with international law, and those who have ‘exhausted all avenues to remain in Australia’. Second, the Bill is not limited in its application to non-citizens affected by the NZYQ decision.
1.59The Kaldor Centre then made the following comments with respect to whether or not the Bill was limited to those ‘who have exhausted all avenues to remain in Australia’:
Again it is important to draw a distinction between people who have had their protection claims ‘finally determined’ under the Migration Act 1958 (Cth), and those who have ‘exhausted all avenues to remain in Australia.
Under the Migration Act, an application is considered ‘finally determined’ when all avenues for merits review…have been exhausted.Proposed section 199D of the Bill would prevent the Minister from issuing a removal pathway direction to a non-citizen who has made a valid application for a protection visa which has not yet been finally determined.
However, a person whose protection visa application has been finally determined in this sense may nevertheless have other avenues to remain in Australia.Notably proposed section 199C would give the Minister the power to give removal pathway directions to non-citizens who have pending judicial review or ministerial intervention requests, and therefore have not ‘exhausted all avenues to remain in Australia’…
While proposed section 199D(6) does place certain limitations on the Minister’s power to give removal pathway directions in relation to specified actions involving court or tribunal proceedings, there is nothing in the Bill that would preclude the Minister from issuing directions to a person to cooperate in their removal while they are preparing to lodge a judicial review application or indeed while a judicial review application is ongoing…
Removing protection visa applicants from Australia before their judicial review applications or ministerial intervention requests are finalised further increases the risk that people with protection needs may be forced to return to countries where they would be at risk of persecution or other forms of serious harm, in breach of Australia’s international obligations.[29]
1.60In responding to the question whether the current drafting of the Bill only includes those persons: ‘who have exhausted all avenues to remain in Australia’, the Law Council of Australia responded as follows:
The short answer to the question is no, because the cohort can be expanded by an instrument made by the Executive which may not be subject to the disallowance process.
…the way the provision is drafted would not prevent a person who is on a Bridging Visa E on departure grounds being removed if the individual had judicial review proceedings in progress or a ministerial intervention request unanswered, as the operation of the relevant power is only dependent on the bridging visa the individual holds. The Law Council does not consider this to be a principled approach to restricting the cohort affected by the Removal Bill to individuals who have ‘exhausted all avenues to remain in Australia’…[30]
Currently, the way section 199B is drafted does not meet the Department’s stated intention that it only apply to those on a removal pathway, as it clearly could cover a far broader range of persons, including those who may exercise their right to judicial review.There is no requirement to consider ongoing migration processes, nor, for that matter, any other processes such as family court proceedings or any other matter…[31]
1.61It should be noted that in evidence during the inquiry, the Group Manager, Legal of the Department advised that the Department would not attempt to affect the removal of someone while they have judicial proceedings on foot due to the risk of the person obtaining an injunction preventing their removal.Also refer to the intention of the Department as expressed by the Group Manager, Legal at paragraph 2.17 of the Majority Report.However, with all due respect, the issue should be dealt with explicitly in the Bill; especially given the consequence of failing to respond to a removal direction notice is the imposition of a mandatory minimum criminal penalty of 12 months.
1.62On the basis of the strong submissions received by the Committee, there is a disconnect between the drafting of section 199B(1) and the stated intention of the Department of Home Affairs and the Minister that the section should only apply to persons ‘who have exhausted all avenues to remain in Australia’.Section 199B should be amended to align the scope of the section with the intention of the Minister and the Department.Both the Law Council of Australia and the Australian Human Rights Commission proposed amendments which should be adopted in this regard.
Recommendation 1
1.63Proposed 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.
1.64Under section 199B(1)(d), the Minister would have the power to expand the category of visas which would make the holders “removal pathway non-citizens.” As discussed at paragraphs 2.20 to 2.22, there was strong opposition to the inclusion of this clause.
1.65With respect to that power, the Department stated:
The Department recognises that there has been commentary about proposed subsection 199B(1)(d) which provides the flexibility to prescribe categories of visa holders who could be brought under the meaning of removal pathway non-citizen, if necessary to do so in the future.Importantly, this Bill does not expand the cohort of people who are eligible for removal from Australia, that is non-citizens who have exhausted all avenues to remain or for whom the Government is lawfully entitled or indeed required under the Migration Act to seek removal. Nor does prescribing a visa under the power in and of itself make that personal liable for removal.The power at subsection 199B(1)(d) is intended [to] provide flexibility, should another type of visa be determined the most appropriate visa for non-citizens to maintain lawful status in the community while making arrangements to depart or be removed from Australian, in the same way the BVR is used for this purpose.Any regulations made to prescribe a visa for the purposes of subsection 199B(1)(d) would be subject to scrutiny and disallowance by the Parliament.[32]
1.66In responding to the explanatory memorandum’s stated need for ‘flexibility’, the Scrutiny of Bills Committee stated:
While noting this explanation, the committee is of the view that the ability to expand the scope of people that may be subject to removal pathway directions is a significant matter that would more appropriately be dealt with by way of primary rather than delegated legislation. This is particularly the case due to the fact that, as discussed below, the failure to comply with a removal pathway direction is a serious offence carrying a severe maximum penalty and a minimum penalty of 1 year imprisonment.
The committee does not consider that the justification provided in the explanatory memorandum is sufficient, noting that the need for flexibility in the circumstances of the legislative scheme is not fully explained or balanced against the potential impact that the provision could have on individuals.
The committee’s concerns are heightened in this instance as paragraph 199B(1)(d) is applicable to lawful non-citizens who have been granted a visa permitting residence in Australia, who may have lived in Australia lawfully for an extended period and have no certainty or clarity as to when a visa may be subject to a removal pathway direction.[33]
1.67In response to a question on notice asked by Senator Scarr, this view was echoed by each of the Law Council of Australia, the Human Rights Law Centre, the Australian Human Rights Commission and the Kaldor Centre.[34]
1.68Given the nature of the penalties which would be imposed for failure to comply with a removal pathway direction; namely, the imposition of a mandatory minimum criminal penalty of 12 months imprisonment, the expansion of the categories of visas should be carefully circumscribed.As explained by the Department, there may be circumstances where the Department needs the flexibility to act through regulation.In such a case, the clause which provides the Minister with the power needs to clearly: (a) qualify the nature of visas which are intended to fall within the regulation making power; and (b) state that the delegated legislation is subject to the usual disallowance process (which the Department advised is the intention).
1.69In relation to the first issue, the wording of subsection 199B(1)(d) is not qualified in any way. This needs to be addressed.The Department of Home Affairs stated in its submission that:
The power at subsection 199B(1)(d) is intended [to] provide flexibility, should another type of visa be determined the most appropriate visa for non-citizens to maintain lawful status in the community while making arrangements to depart or be removed from Australian, in the same way the BVR is used for this purpose.[35]
1.70The drafting of the subsection should reflect this intention.
Recommendation 2
1.71Subsection 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.
1.72In relation to the disallowance issue, there is no requirement for a prescription made under subsection 199B(1)(d) to be made by disallowable regulation.This has raised a concern that the prescription could be made by some delegated legislation which is not subject to the same disallowance procedure as a regulation.Refer to the answers to questions on notice provided by the Law Council of Australia.[36]
1.73In response to a question on notice from Senator Paterson, the Department advised as follows:
The Department confirms that the way the Bill is drafted is consistent with the Government’s intention that any legislative instrument made under proposed paragraph 199B(1)(d) is subject to parliamentary scrutiny and disallowance. Paragraph 199B(1)(d) refers to ‘a visa prescribed for the purposes of this paragraph’. The word ‘prescribed’ engages section 504 of the Migration Act 1958, which provides that the Governor-General may make regulations prescribing all matters which under the Act are required or permitted to be prescribed.[37]
1.74Hence, it is clear that the Department intends that any expansion of the visa categories should be made through disallowable regulations.This is appropriate.Given the significance of this matter and the concerns raised by the legal experts, all doubt with respect to the application of the disallowance process should be removed by explicitly referring to the need to make a regulation.In its submission, the Law Council of Australia gave an example of other provisions in the Migration Act which specifically refer to ‘prescribed by regulations’.[38]
Recommendation 3
1.75Subsection 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.
1.76Section 199C of the Bill details the powers of the Minister to give a written notice to a removal pathway non-citizen.Heightened scrutiny of the powers is required given that non-compliance would constitute a criminal offence providing for a mandatory minimum criminal penalty of 12 months imprisonment.
1.77The Law Council of Australia raised a number of concerns with respect to the power under section 199C; namely: (a) the scope of the powers; (b) the absence of indicators of procedural fairness; (c) the absence of objective considerations; (d) the human rights implications, including with respect to the impact on a family unit, the best interests of children and the impact on persons subject to the power; and (e) the directions themselves may give rise to a person having to do something which may make them subject to persecution.[39]
1.78In relation to the position of children, the Law Council of Australia notes:
We particularly underline the rights of the child in this context.While the Minister must not give a removal pathway direction to a removal pathway non-citizen if the non-citizen is a child under 18, the Minister may give a direction to the parent or guardian of a child to do something on the child’s behalf.This power may be exercised despite Australia’s obligations under the Convention on the Rights of the Child, which require that, in all actions concerning children, the best interest of the child shall be a primary consideration.This requirement is absent from section 199D…
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 of their children, regardless of their fears for their wellbeing…[40]
1.79Similar concerns were raised by the Australian Human Rights Commission which stated:
The Commission is concerned that the Bill seeks to allow for a removal pathway direction to be provided to the parent or guardian of a child.The Bill, as drafted, does not include sufficient detail as to what factors must be considered prior to such an extreme measure being taken…
The Commission considers that, prior to issuing a direction with respect to a child, as assessment should be made of what the child’s best interests are…[41]
1.80In relation to the potential separation of families, the Australian Human Rights Commission states:
The Bill does not clearly address the issue of whether, by issuing a direction with respect to a child, that child may become separated from one or both parents…Separation could occur by a child being removed from Australia away from a parent remaining in Australia, or through a parent being removed from a child who will remain in Australia.
The potential for separation from family should be included as a mandatory factor to be considered when assessing the best interests of the child…[42]
1.81The Australian Human Rights Commission also raised concerns regarding the right of the child to have their views heard. Moreover, the Australian Human Rights Commission raised the risk of child statelessness or the feasibility of a parent or guardian being able to comply with a removal pathway direction issued with respect to the child.Examples were provided with respect to the impact of the operation of laws in other countries where the mother may not be able to confer nationality on her child.In this regard, the Australian Human Rights Commission submits:
The issue should be required to be considered prior to the issuing of a direction, rather than allowing it to be a ‘reasonable excuse’ to be determined by a criminal court and where the onus is on the person relying on the excuse to establish it.[43]
1.82With respect to operational safeguards which may be in place within the Department of Home Affairs, the Australian Human Rights Commission noted:
The Commission is aware that the Department has a child safeguarding policy statement, entitled the Child Safeguarding Framework (‘CSF’), which is informed by Australia’s international obligations.This is supported by policy and procedural documents, including the Best interest of the Child – Policy Statement (DM-5721).The Commission has not been in a position to view these documents prior to drafting this submission.These however are policy statements, and subject to amendment at any time.[44]
1.83Further concerns in relation to the breadth of the legislative language are detailed in paragraphs 2.25 to 2.29 of the Majority Report.
1.84The Department responded to the concerns raised by stakeholders by referring to the safeguards and constraints contained in the Bill.Refer to paragraphs 2.30 to 2.32 of the Majority Report.Further, the Secretary of the Department explicitly confirmed that the Department would consider the best interests of the child (refer to paragraph 2.51 of the Majority Report).
1.85In the context of a Bill which proposes the imposition of mandatory minimum criminal penalties, it is important that relevant safeguards are included in the Bill.In this regard, policy and procedural documents not contained in the Bill provide inadequate protection.In relation to the best interests of children, this is a matter of such significance that it should be dealt with explicitly in the Bill.There were several other helpful suggestions made with respect to how the Bill could be amended to address other concerns raised by stakeholders.These included the suggestion of the Scrutiny of Bills Committee that: (a) the Bill provide for a minimum time for compliance which would: ‘allow a person to take steps to comply and seek legal advice’;[45] and (b) ‘better delimitation of the directions that may be given by the minister.’ There was support from each of the Law Council of Australia and the Australian Human Rights Commission for these suggestions.
Recommendation 4
1.86The 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
1.87Consideration 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.
1.88Section 199E of the Bill would impose a mandatory minimum criminal penalty of 12 months’ imprisonment for non-compliance with a removal pathway direction.It is extraordinarily rare that a mandatory minimum criminal penalty is legislated under Australian law.As stated by the Scrutiny of Bills Committee:
While the committee acknowledges that the penalty and minimum sentence are intended to reflect the seriousness of the offence and act as deterrents, the committee reiterates its longstanding view that the use of mandatory minimum sentences impedes judicial discretion.6 The committee reiterates that the courts should not be limited in their ability to impose sentences with regard to the circumstances of the offending.[46]
1.89It is noted that the Parliament has recently enacted legislation providing for a mandatory minimum criminal penalty.This applied to offences committed by members of the so called NZYQ cohort who breach conditions imposed upon their Removal Pending Bridging Visas.The NZYQ cohort includes non-citizens with serious criminal convictions. The imposition of the conditions is directly linked to the safety threat they pose to the community.
1.90It was in the context of this cohort that the Senate passed the Migration Amendment (Bridging Visa Conditions) Act 2023 which imposed a mandatory minimum criminal penalty of 1 year imprisonment for failing to comply with monitoring conditions, failing to comply with a curfew requirement (remaining at an address at notified times) or failing to comply with requirements relating to a monitoring device.[47]
1.91However, as noted above, the persons falling within the scope of section 199B(1) is considerably larger than the NZYQ cohort – it includes persons who have not committed any previous criminal offence.In many cases, they are vulnerable persons who have suffered great trauma over a long period of time and are fearful of being returned to their country of origin.However, the Bill would impose the same mandatory minimum criminal penalty to someone who has never committed a previous criminal offence as would apply to a convicted criminal within the NZYQ cohort who breaches a monitoring condition, fails to comply with a curfew requirement or interferes with a monitoring device.
1.92In commenting on the minimum mandatory criminal penalty, the Department submitted as follows:
The offence of non-compliance with a direction [is] intended to gain the cooperation of a removal pathway non-citizen is regarded by the Government as similarly serious in terms of frustrating migration law, as well as damaging the integrity of Australia’s migration and temporary entry programs.
Non-cooperation demonstrates a disregard for Australia’s laws and the Department’s ability to manage the arrival and departure of non-citizens effectively…[48]
1.93The Department refers to laws in the United States and submits:
The United States has a similar provision where an individual wilfully fails or refuses to make timely application in good faith for travel or other documents necessary to their departure, which has a maximum sentence of 4 years (or up to 10 in certain circumstances, in effect since 1996.[49]
1.94However, in relation to the laws in the United States, the Australian Human Rights Commission noted:
The Commission would like to clarify a point made in its submission at [66], with respect to whether other jurisdictions have similar criminal provisions as proposed by the Bill.The Department referred to the US as having a similar offence…the Commission would like to point out that the US provision includes important judicial discretion as follows:
The Court may for good cause suspend the sentence of an alien under this subsection and order the alien’s release under such conditions as the court may prescribe.In determining whether good cause has been shown to justify releasing the alien, the court shall take into account such factors as:
(a)the age, health, and period of detention of the alien;
(b)the effect of the alien’s release upon the national security and public peace or safety;
(c)the likelihood of the alien’s resuming or following a course of conduct which made or would make the alien deportable;
(d)the character of the efforts made by such alien himself and by representatives of the country or countries to which the alien’s removal is directed to expedite the alien’s departure from the United States;
(e)the reason for the inability of the Government of the United States to secure passports, or other travel documents, or removal facilities from the country or countries to which the alien has been ordered removed; and
(f)the eligibility of the alien for discretionary relief under the immigration laws.[50]
1.95In commenting upon the imposition of the mandatory minimum criminal penalty, the Parliamentary Joint Committee on Human Rights commented as follows:
The statement of compatibility states that the objective of a mandatory minimum sentence is to provide a strong deterrent to non-cooperation, stating that ‘if a non-citizen understands that they are facing a minimum term of imprisonment for non-cooperation then it is more likely they will comply with a direction to cooperate with efforts to remove them’. However, it also states that the inability of a court to impose a period of imprisonment of less than 12 months, or a pecuniary penalty only, if the person is convicted, ‘may mean there could be a risk of incompatibility with the right in Article 9 of the ICCPR in some circumstances’…
In relation to the right to a fair trial, the statement of compatibility states that there is a risk that mandatory minimum sentencing is incompatible with the right to have a sentence reviewed by a higher tribunal according to law ‘because mandatory sentencing prevents judicial discretion in relation to the severity or correctness of a minimum sentence’...
In order for detention not to be considered arbitrary under international human rights law it must be reasonable, necessary and proportionate in the individual case. Detention may be considered arbitrary where it is disproportionate to the crime that has been committed (for example, as a result of a blanket policy).As mandatory sentencing removes judicial discretion to take into account all of the relevant circumstances of a particular case, it may lead to the imposition of disproportionate or unduly harsh sentences of imprisonment. In the context of a removal pathway direction, were a person to breach the direction by, for example, failing to fill in a passport application form in time, it may be that a mandatory sentence of one year in prison is a disproportionate punishment…
Consequently, as the measure would impose a mandatory minimum penalty without the possibility for any judicial discretion, the measure is incompatible with the right to liberty and to a fair trial…
In relation to mandatory minimum criminal penalties for any non-compliance with such a direction, the committee considers these to be incompatible with the rights to liberty and to a fair trial, as mandatory sentencing removes judicial discretion to take into account all of the relevant circumstances of a particular case and may lead to the imposition of disproportionate or unduly harsh sentences of imprisonment (and the appropriateness of which cannot be reviewed by a higher court)…[51]
1.96In the Majority Report there is a reference to the matters raised by the Parliamentary Joint Committee on Human Rights. In the Coalition’s view, this reference is inadequate.There is a link between the concerns raised by the Parliamentary Joint Committee on Human Rights and the consideration which should be given to the Bill by this Committee.In a Bill which includes a mandatory minimum criminal penalty, there is an elevated obligation to ensure that appropriate safeguards are contained in this Bill.There is a link between the penalty the Bill seeks to impose, and the safeguards required to protect against injustice.This makes the case for additional safeguards to be inserted in the Bill more compelling.
Recommendation 6
1.97The 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.
1.98Given the onerous nature of the powers which would be granted under the Bill, there should be a requirement for regular reporting with respect to the use of the powers. This should be through the tabling of a report to Parliament.In this way, the Parliament will be provided an opportunity to assess how the powers are being utilised, the regularity of exercise of the powers, and other relevant matters.
1.99The Coalition proposed amendments in the House of Representatives which provided for a statement to be provided to both Houses of Parliament with respect to each removal pathway direction. The information provided would include: (a) the non-citizen’s country of origin; (b) any visas held by the non-citizen; (c) whether the non-citizen is a serious offender for the purposes of Division 395 of the Criminal Code.The statement would not provide information revealing the identity of the non-citizen.[52]
Recommendation 7
1.100Within 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.
1.101Proposed section 199F would empower the Minister to designate a country as a so-called removal concern country if the Minister considers it would be in the ‘national interest’ to designate the country to be a removal concern country.
1.102At the outset, it should be noted that there are doubts with respect to the likelihood of the power to designate a country as a removal concern country to impact the policy positions of foreign countries; especially autocratic regimes.Whilst examples were provided by the Department of Home Affairs in relation to the impact of the exercise of such powers by the United States with respect to the policies of Guyana and Guinea, it is perhaps somewhat obvious to observe that Australia is not the United States, nor is Russia/Iran equivalent to Guyana/Guinea. However, it is noted that the Department considers that the availability of the power may be a tool which can be applied to convince foreign countries to accept the return of their citizens who are found to have no right to be in Australia.
1.103The other policy issue which needs to be considered is the potential for unintended consequences to flow from the designation of a country as a removal concern country.This includes: (a) the impact on Australia diaspora communities; and (b) whether such a declaration may generate a ‘pull factor’.We deal with these issues below.
1.104As detailed in paragraph 1.33 of the Majority Report, there are only two pre-conditions for the exercise of the power; namely the Minister must first consult with the Prime Minister and the Minister for Foreign Affairs.
1.105In its discussion of the power, the Department of Home Affairs stated:
Designation would only take place after a range of bilateral considerations were taken into account, and all reasonable and appropriate efforts and attempts had been made to engage the country to cooperate and facilitate the lawful removal of its nationals.In practice, the removal concern country designation would be considered following diplomatic and government to government engagement on the issues and challenges of returns before it is utilised.[53]
1.106However, as noted by the Law Council of Australia, the Human Rights Law Centre, the Kaldor Centre and the Australian Human Rights Commission in answers to questions on notice asked by Senator Scarr, none of the pre-requisites are included in the drafting of the Bill.[54]
1.107This differs materially from the comparable UK provision which provides a number of considerations which must be taken into account under section 72 of the Nationality and Borders Act 2022 (UK).Given the absence of these considerations, the Law Council of Australia describes the powers as: ‘effectively unconstrained and open-ended’.[55]
1.108In answers to questions on notice, the Kaldor Centre expressed its strong opposition to the power, noting:
The blacklisting of entire countries may have significant economic, diplomatic and security implications for Australia which warrant careful consideration and consultation with all areas of government.Additionally, from a human centred perspective, punishing people who may wish to work, study in or visit Australia for the actions of their government is punitive – particularly when the countries are non-democratic autocracies.[56]
1.109In its answers to questions on notice, the Kaldor Centre provided helpful comments in relation to the use of such powers by the UK, the United States and the European Union.
1.110In contrasting the proposed model under the Bill with the law applying in other jurisdictions, the Kaldor Centre submitted:
By contrast, the Australian model (proposed sections 199F and 199G) envisages that the Minister for Immigration may, ‘by legislative instrument, designate a country as a removal concern country if the Minister thinks it is in the national interest to designate the country to be a removal concern country.’ The power must be exercised personally and the Minister is only required to consult with the Prime Minister and the Minister for Foreign Affairs. The designation automatically covers all visa subclasses, except for those minor exceptions for immediate family members of Australian citizens/permanent residents and humanitarian entrants.
There is no flexibility in the way the bill is drafted for more targeted provisions focusing on specific visa subclasses. None of the issues considered by the US, UK or EU are mentioned in the bill – indeed, there is no indication of the factors that might lead the Minister to make such a designation other than ‘think[ing] it is in the national interest’, nor any requirement for such a decision to be periodically reviewed.[57]
1.111In answers to questions on notice, the Human Rights Law Centre stated:
It is also important to clarify that the power to designate removal concern countries in proposed section 199F is not limited to countries that are unwilling to facilitate the removal of their nationals from Australia. There is nothing in the Bill that limits the Minister’s power in this manner. Instead, the Minister can designate any country that the Minister thinks it is in the “national interest” to designate with no objective statutory criteria to inform that assessment and no express statutory purpose to guide such a designation.[58]
1.112Whilst recommending that the power to declare a country as a removal concern country should be deleted, the Australian Human Rights Commission recommended that if the power was to remain in the Bill:
The Commission recommends that the Bill be redrafted to include within section 199F of Schedule 1, a set of factors that must be considered prior to the Minister exercising their power to designate a removal concern country.The Bill should also include a mandatory review period.[59]
1.113In relation to the concept of a review period, it is noted that there is no obligation upon the Minister to designate a period during which a country will be designated a removal concern country.In response to a question on notice from Senator Paterson, the Department stated:
There is no requirement or related power in the Bill for the Minister to specify the duration or period of effect for a designation. Instead, proposed s 199F(3) provides a power for the Minister to revoke the designation at any time after it is made – for example, if a designated removal concern country were to change its position and begin cooperating with Australia in line with the expectations set out in proposed s 199A(2).[60]
1.114Again, it is noted that the basis for revocation is simply the ‘public interest’. The drafting of the Bill is not precise with respect to the circumstances in which the declaration would be lifted.
1.115Concerns in relation to the power were raised by a range of organisations representing diaspora groups, including: Hindus for Human Rights ANZ; the Multicultural Youth Advocacy Network; the Zimbabwe Australia Cultural Association; the Kurdish Society of Queensland; the Australian Iranian Community Alliance; and the Queensland African Communities Council.[61] Refer to paragraphs 2.70 to 2.76 of the Majority Report.
1.116Finally, it should be noted that the introduction of the Bill without prior consultation has caused considerable distress to diaspora communities.In its submission, the Australian Iranian Community Alliance Inc. attached a survey of the impact of the Bill upon the Australian Iranian community and noted:
An overwhelming 82% of respondents reported moderate to extreme levels of stress and anxiety due to the Bill, highlighting a significant deterioration in mental health across the community, largely driven by the fear of family separation and the instability of their future in Australia…
The potential blacklisting under the bill would influence major life decisions for 85% of the participants, including career paths, family planning, and financial investments, indicating widespread apprehension about establishing long-term plans in Australia…[62]
1.117The concern this Bill has caused in diaspora communities due to the lack of prior consultation is very unfortunate.
1.118It is noted that the intent of the power is to: ‘gain cooperation of that country in accepting and facilitating the removal from Australia of their citizens’.However, the prospect of a blanket prohibition (with very limited exceptions) of travel from a country is causing great concern amongst diaspora communities, and hence the exercise, or potential exercise, of this power may have a negative impact on diaspora communities.
1.119In relation to any declaration made by the Minister, it is important that the impact on local communities should be considered by the Minister.As the introduction of this Bill has evidenced, the making of any declaration will cause considerable distress in the impacted communities.Further, it is also important that any decision to declare a country as a removal concern country be reviewed on a regular basis either by the Minister or an appropriate Parliamentary Committee; for example the Parliamentary Joint Standing Committee on Intelligence and Security.
Recommendation 8
1.120The 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 the analogous UK legislation), including the potential impact on Australian diaspora communities of making such a declaration.
Recommendation 9
1.121The Minister and/or the Parliamentary Joint Committee on Intelligence and Security 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.
1.122The instrument declaring a country a removal concern country is not subject to disallowance.This was confirmed by the Department in its answer to a question on notice asked by Senator Paterson.The Department advised:
A legislative instrument made under proposed s 199F(1) to designate a country as a ‘removal concern country’ would be exempt from disallowance under s 42 of the Legislation Act 2003. Paragraph 44(2)(b) of the Legislation Act provides for legislative instruments to be prescribed by regulation as exempt from disallowance under s 42 of the Act. Item 20 in the table under section 10 of the Legislation (Exemptions and Other Measure) Regulation 2015 (LEOMR) provides that legislative instruments (other than regulations) made under Part 2 of the Migration Act 1958 are exempt from disallowance. As proposed s 199F would be inserted in Part 2 of the Migration Act, and the Bill does not include a provision to expressly displace the exemption under the Legislation Act, a legislative instrument made under s 199F(1) would be covered by the exemption in s 10 of the LEOMR.[63]
1.123It is noted that the Explanatory Memorandum does not make this clear.Nor did the submission by the Department of Home Affairs to this Inquiry.It is unsatisfactory that it has required questions on notice to clarify such an important point of scrutiny.
1.124In this regard, the Department’s answer to a subsequent question on notice from Senator Paterson in relation to this disallowance issue was as follows:
If there had been an intention to make a legislative instrument made under s 199F(1) disallowable, the Bill would have included an amendment to expressly displace the exemption under s 44 of the Legislation Act 2003 and provide for the instrument to be disallowable under s 42 of that Act.[64]
1.125It is unsatisfactory for the Department to expect the Parliament to peer into the inner workings of the Legislation Act 2003 and its intersection with the Migration Act 1958 in order to determine if an instrument will be subject to disallowance.This should be made clear either in the Bill or the Explanatory Memorandum or in the Submission of the Department of Home Affairs.In this case, it was not.
1.126With respect to the issue of whether a declaration should be subject to disallowance, the following is noted:
(a)The Scrutiny of Bills Committee considered the issue of such significance that the matter should only be dealt with through legislation, not through delegated legislation.[65]
(b)The circumstances when delegated legislation should be exempted from disallowance are extremely narrow.Given the international connotation of any such declaration and the potential impact on the effectiveness of Australia’s engagement with foreign countries in relation to complicated foreign policy matters, there is justification for considering that a declaration should not be subject to disallowance.However, that justification needs to be expressly set out in the Explanatory Memorandum – the reasons need to be explained.In this regard, the previous resolution of the Senate is noted to the following effect:
(1)That the Senate notes:
(3)the Constitution vests the legislative power of the Commonwealth in the Federal Parliament;
(4)if the Parliament is to satisfy this constitutionally mandated role, it must have the ability to scrutinise all legislation made by the executive; and
(5)exemptions from disallowance and sunsetting undermine the ability of the Parliament, and particularly the Senate, to undertake this scrutiny.
(2)That the Senate resolves:
(6)delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances; and
(7)any claim that circumstances justify exemption from disallowance and sunsetting will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases.[66]
(c) Given the impact that the declaration of a removal concern country would have on the wellbeing of members of diaspora communities (who are represented by elected members of Parliament), it is imperative that prior to any declaration being made there is consideration given to the impact on diaspora community and appropriate consultation (refer to Recommendation 8 above).
(d)If the declaration is not subject to disallowance, it is even more important that a declaration is subject to sunsetting – a measure which was supported by the Australian Human Rights Commission and the Law Council of Australia,[67] and also similarly recommended by the Parliamentary Joint Committee on Human Rights.[68] It should not be left entirely to the discretion of the Minister.A period of three years may be considered appropriate.
Recommendation 10
1.127The 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 (refer to Recommendation 9).
Recommendation 11
1.128Any declaration of a country as a removal concern country should be subject to sunsetting after three years.
1.129Section 199G(2) of the Bill sets out exemptions to the bar on new visa applications from nationals of removal concern countries.In relation to family members, this includes where the non-citizen is:
(b)The spouse, de facto partner or dependent child (within the meaning of the regulations) of:
(i)an Australian citizen;
(ii)the holder of a permanent visa that is in effect;
(iii)a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as time imposed by law; or
(c) the non-citizen is the parent of a child who is under 18 and is in Australia.[69]
1.130As outlined in paragraphs 2.80 to 2.86 of the Majority Report, there were strong submissions made with respect to the inadequacy of these exemptions.In particular, concerns were raised that the exemption would not include parents of independent children, grandparents, siblings and people who are culturally considered to be close family.It is noted that the Minister has indicated that exemptions could be granted.However, as is always the case with such exemptions, there are legitimate concerns with respect to processing times and the capacity of the Department to administer such applications given limitations on resources.
1.131It is also noted that the Parliamentary Joint Committee on Human Rights recommended that references to dependent child in the Bill should be amended to refer to ‘dependent person’ to reflect non-western kinship systems.[70]
1.132Given the intention of the power is not to punish Australian diaspora communities, it is recommended that the scope of the exemption be expanded.
Recommendation 12
1.133That 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).
1.134The question arises as to whether the declaration of a country as a removal concern country could have unintended consequences.
1.135In its submission, the Department of Home Affairs stated:
Some people smugglers may seek to use some of the measures in the proposed legislation to market their services to vulnerable potential irregular immigrants, suggesting there is no legal way for them to travel to Australia. This risk would be mitigated through targeted strategic communications particularly if a ‘removal concern country’ were to be designated under sections 199F and 199G of the Bill, highlighting that the proposed measures allow the continuation of humanitarian and family pathways for regular migration.[71]
1.136It should be noted that when questioned in relation to the matter by Senator Paterson, the Department provided the following comments:[72]
Senator PATERSON:
Ms Foster, on page 6 of your submission you say:
Some people smugglers may seek to use some of the measures in the proposed legislation to market their services to vulnerable potential irregular immigrants, suggesting there is no legal way for them to travel to Australia.
You then go on to talk about some possible mitigations to that risk through strategic communications. I'll come to the mitigations in a moment, but which are the parts of the legislation that you're concerned may be used by people smugglers to send that message?
Ms Foster:
I think the statement that's being made is one that's general, but I will pass to Rear Admiral Sonter to articulate the rationale behind that statement.
Rear Adm. Sonter:
It's not a new risk. We constantly know that the people smugglers monitor the Australian political domestic environment for key decisions or policy changes, whether real or perceived, to market to the unfortunate people that we see. Strategic communication is a tool that I have and have had for many years
I'll come to that. I've got some questions about that, but I want to establish the factual basis of your statement first, because it doesn't seem general in nature to me.
It says 'some of the measures in the proposed legislation', so it's clearly relating to this bill in some way.
Which are the measures in the proposed legislation that you are concerned could be misused by people smugglers in this way?
My concern is that they would take any element of that particular bill and they would actually articulate it in a non-truthful manner. Again, as I say, we are constantly countering that with agile strategic communications.
So it's not the power to designate a country as a 'country of concern' and ban people from applying for visas? That's not the power?
That's not what I'm specifically talking to. It's more, as I say, some aspects which are general. We know that people smugglers take it, they take it into their own language and they try and sell it as the idea that our strong borders are no longer the case.
Rear Admiral, were you involved in preparing this submission?
I was.
Is this particular part of the submission based on your advice?
It is.
Why didn't you say in the submission what you just said then, which is that people smugglers are liars, they'll say anything and it doesn't matter what our legislation is—they'll tell desperate people anything? You didn't say that; you said 'some measures in the proposed legislation'.
In hindsight, I probably should have. That's my mistake. But my indication, as I'm talking to you now, is that it's more on a generic basis, where they take the whole proposal and try and sell it.
Right. You go on to say that strategic communications can mitigate this risk. How significant do you think this risk is? How likely do you think it is that this bill will be misused in this way?
Again, we know that people smugglers look at any changes, whether they are real or perceived, and they sell them, so we are constantly strategic messaging to make sure that vulnerable people understand what is right and what is not truthful.
1.137The concern is that imposition of a prohibition (in most cases) upon applying for visas could lead to potential visa applicants seeking alternative irregular ways to come to Australia. This could be leveraged by people smugglers to promote their business model. The same point was made by the Australian Refugee Advisory Panel who advised:
In fact, this Bill will encourage people to seek asylum through irregular means leading to an increase in people smuggling activity.[73]
1.138Rear Admiral Sonter gave further evidence to this committee that Operation Sovereign Borders (OSB) was “in the midst of already getting that additional resourcing in terms of more funding for strategic communications” and suggested that OSB is receiving “in the order of $20 million a year for strategic messaging”, which included additional money to the baseline funding of $8.5million per year.[74] He clarified that there is no additional funding for strategic communications affiliated directly with this bill.[75]
1.139Rear Admiral Sonter explained this communications strategy is utilised in over 11 countries in 16 different languages, and that the effectiveness of this strategy is measured by a quantitative and qualitive inspection of how many people click and see this messaging. Rear Admiral Sonter admitted to the committee that “deterrence is always hard to measure”.
1.140However, it is disappointing to discover in answers to follow-up questions on notice that Rear Admiral Sonter’s evidence on the funding levels for strategic communications was completely incorrect: the Department has admitted that total funding for OSB’s strategic communications is going down – not up – as initially suggested. The Department reveals:
The total budget for [OSB] strategic communications was $17.1 million in 2022-23. $2.9 million was subject to movement of funds from 2022-23 to 2023-24, resulting in a budget of $14.1 million in 2022-23 and $13.9 million in 2023-24. Any additional funding for 2024-25 to supplement the base funding of $8.5 million is a decision for Government.[76]
1.141The downward trajectory of funding for strategic communications is deeply concerning at a time when our borders are being seriously challenged by people smuggling operators with 13 illegal boat arrivals with three illegal boats reaching the Australian mainland. These concerns are compounded by the fact the ABF has conceded that there is a 20.7% decrease in aerial flying hours and a 12.2% fall in maritime patrol days in 2022-23, compared to 2020-21 levels.[77] This weakening of our border security is an inevitable result of a cumulative cut of at least $436.5 million over the forward estimates, and it is in this context that concerns of possible pull factors created by this bill should be viewed.[78]
1.142Given that the Government has conceded that this bill may be exploited by the people smugglers to market their illegal trade to vulnerable people to “[suggest] there is no legal way for them to travel to Australia”,[79] it is imperative that the Government undertake a comprehensive review of all mitigating measures that could be implemented to address any ‘pull factors’ arising from this Bill. That should include assessing additional resources which should be deployed to support such initiatives.Moreover, the Government should take action to restore the Operation Sovereign Borders framework in full, including through the reinstatement of temporary protection visas, reversing budget cuts to border protection, and restoring maritime and aerial surveillance levels to at least the levels in 2020-21.
Recommendation 13
1.143That Government should:
undertake a comprehensive reviewof 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
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
1.144The 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.
1.145There are a number of further matters which warrant comment.
1.146Given the onerous nature of the powers under the Bill, an independent statutory review should be undertaken with respect to the exercise of the powers after 5 years.The review should be open to submissions from the public with respect to the exercise of the powers.
Recommendation 15
1.147A 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.
1.148Finally, it is noted that the intention is that paragraph 199B(1)(c) is not to capture holders of subclass 050 Bridging (General) Visas who have received such visas in circumstances other than for the purpose of a final step before departure.[80]
Recommendation 16
1.149It 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.
1.150The above amendments are proposed in good faith to advance consideration of the Bill.The Bill provides the Minister with substantial new powers.The removal direction power may result in the imposition of minimum mandatory criminal penalties; namely, 12 months imprisonment.The designation of a removal concern country would have material impacts on Australian diaspora communities.In all the circumstances, it is imperative that the Bill have appropriate safeguards.
Recommendation 17
1.151Given 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.
Senator Paul Scarr
Deputy Chair
Senator Alex Antic
Member
Senator James Paterson
Participating Member
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.
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.
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.
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.
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.
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.
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.
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.
The Minister and/or the 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 House of Parliament the reasons why continued designation of a country as a removal concern country is justified.
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.
Any declaration of a country as a removal concern country should be subject to sunsetting after three years.
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).
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.
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.
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.
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.
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.
Footnotes
[1]Journals of the Senate, no.108, 27 March 2024, pp. 3227–3228.
[2]The Hon Clare O’Neil MP and The Hon Andrew Giles MP, Joint Press Conference transcript, 27March2024, https://minister.homeaffairs.gov.au/AndrewGiles/Pages/press-conference-27032024.aspx.
[3]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024, pp.2–10.
[4]Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, Report 3 of 2024, 17 April 2024, pp.16–43.
[5]Paragraph 1.3 of the Majority Report.
[6]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024,pp.8–9.
[7]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024), p. 5.
[8]Refugee Advice & Casework Service, Submission 73, p. 3.
[9]Asylum Seeker Resource Centre, Submission 59, p. 2.
[10]Department of Home Affairs, Submission 75, p. 9.
[11]Department of Home Affairs, Answers to questions on notice from Senator Paterson, QoN Number29, 26 March 2024 (received 29 April 2024).
[12]Refugee Advisory Council, Submission 99, pp. 1–2.
[13]The Hon Andrew Giles MP, Minister’s second reading speech, 26 March 2024, p. 1.
[14]Department of Home Affairs, Submission 75, p. 6.
[15]Department of Home Affairs, Submission 75, p. 9.
[16]Refer to ss. 76B to 76DA of the Migration Act 1958, as amended by the Migration Amendment (Bridging Visa Conditions) Act 2023.
[17]Department of Home Affairs, Submission 75, p. 5.
[18]Department of Home Affairs, Submission 75, p. 5.
[19]Department of Home Affairs, Answers to questions on notice from Senator Paterson, QoN Number2, 26 March 2024 (received 29 April 2024).
[20]Department of Home Affairs, Answers to written questions on notice from Senator Paterson, QoN Number 54, 17 April 2024 (received 29 April 2024).
[21]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024), p. 8.
[22]Australian Human Rights Commission, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 23 April 2024), p. 1.
[23]Australian Human Rights Commission, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 23 April 2024), pp. 2–3.
[24]Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17April2024 (received 24 April 2024), p. 1.
[25]Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 24 April 2024), pp. 1–2.
[26]Kaldor Centre for International Refugee Law, UNSW, Answers to written questions on notice from Senator Paul Scarr, 17 April 2024 (received 24 April 2024), p. 4.
[27]Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17April2024 (received 24 April 2024).
[28]Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 24 April 2024), p. 3.
[29]Kaldor Centre for International Refugee Law, UNSW, Answers to written questions on notice from Senator Paul Scarr, 17 April 2024 (received 24 April 2024).
[30]Law Council of Australia, Answers to questions on notice from Senator Scarr and Senator Thorpe, 17 April 2024 (received 26 April 2024), pp. 6–7.
[31]Law Council of Australia, Answers to questions on notice from Senator Scarr and Senator Thorpe, 17 April 2024 (received 26 April 2024), p. 8.
[32]Department of Home Affairs, Submission 75, p. 11.
[33]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024, para.1.4, p. 3.
[34]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024); Australian Human Rights Commission, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 23 April 2024); Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 24 April 2024);Kaldor Centre for International Refugee Law, UNSW, Answers to written questions on notice from Senator Paul Scarr, 17 April 2024 (received 24 April 2024).
[35]Department of Home Affairs, Submission 75, p. 11.
[36]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024), p. 8, p. 15.
[37]Department of Home Affairs, Answers to written questions on notice from Senator Paterson, 17April 2024 (received 29 April 2024), QoN Number 59.
[38]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024), p. 8.
[39]Law Council of Australia, Submission 71.
[40]Law Council of Australia, Submission 71, p. 12.
[41]Australian Human Rights Commission, Submission 68, pp.11–12.
[42]Australian Human Rights Commission, Submission 68, pp. 12–13.
[43]Australian Human Rights Commission, Submission 68, p. 14.
[44]Australian Human Rights Commission, Submission 68, p. 12.
[45]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024, para.1.5, p. 3.
[46]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024, para.1.8, p. 4.
[47]Refer to ss. 76B to 76DA of the Migration Act 1958, as amended by the Migration Amendment (Bridging Visa Conditions) Act 2023.
[48]Department of Home Affairs, Submission 75, p. 13.
[49]Department of Home Affairs, Submission 75, p. 13.
[50]Australian Human Rights Commission, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 23 April 2024), p. 11.
[51]Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, Report 3 of 2024, 17April 2024, pp. 16–43.
[52]House of Representatives proposed amendments by Mr Dan Tehan MP.
[53]Department of Home Affairs, Submission 75, p. 15.
[54]Australian Human Rights Commission, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 23 April 2024); Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17 April 2024 (received 24 April 2024; Kaldor Centre for International Refugee Law, UNSW, Answers to written questions on notice from Senator Paul Scarr, 17April2024 (received 24 April 2024).
[55]Law Council of Australia, Answers to questions on notice from Senator Scarr, 17 April 2024 (received 26 April 2024), p. 12.
[56]Kaldor Centre for International Refugee Law, UNSW, Submission 11, p. 8.
[57]Kaldor Centre for International Refugee Law, UNSW, Answers to written questions on notice from Senator Paul Scarr, 17 April 2024 (received 24 April 2024), pp. 9–10.
[58]Human Rights Law Centre, Answers to written questions on notice from Senator Scarr, 17April2024 (received 24 April 2024).
[59]Australian Human Rights Commission, Submission 68, p. 5.
[60]Department of Home Affairs, Answers to written questions on notice from Senator Paterson, 17April 2024 (received 29 April 2024), QoN number 46.
[61]See: Queensland African Communities Council, Submission 6; Kurdish Society of Queensland, Submission 33; Zimbabwe Australia Cultural Association, Submission 34; Amnesty International Australia Victorian Activism and Leadership Committee, Submission 35; Multicultural Youth Advocacy Network Australia (MYAN), Submission 46; Australian Iranian Community Alliance, Submission 74.
[62]Australian Iranian Community Alliance, Submission 74, p. 21.
[63]Department of Home Affairs, Answers to written questions on notice from Senator Paterson, 17April 2024 (received 29 April 2024), QoN number 44.
[64]Department of Home Affairs, Answers to written questions on notice from Senator Paterson, 17 April 2024 (received 29 April 2024), QoN number 45.
[65]Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2024, 27 March 2024, para.1.23, p. 7.
[66]Accountability – Parliament of Australia (aph.gov.au) (16 June 2021 J.3581)
[67]Public hearing, Committee Hansard, 15 April 2024, pp. 4 and 13.
[68]Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2024, 17April2024, para. 1.78 (b), p. 37.
[69]Section 199G(2)(b) and (c) of the Bill.
[70]Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report 3 of 2024, 17April2024, para. 1.78 (b), p. 37.
[71]Department of Home Affairs, Submission 75, p. 6.
[72]Public Hearing, Hansard transcript, 15 April 2024, p. 49.
[73]Australian Refugee Advisory Panel, Submission 99, p. 4.
[74]Public hearing, Committee Hansard, 15 April 2024, p. 50.
[75]Public hearing, Committee Hansard, 15 April 2024, p. 51.
[76]Department of Home Affairs, answers to written questions on notice from Senator Paterson, 15April 2024 (received 1 May 2024), QoN number 5.
[77]Geoff Chambers, Simon Benson, Paige Taylor, The Australian, 20 February 2024, https://www.theaustralian.com.au/nation/politics/ageing-fleet-and-pilot-shortage-cuts-aerial-and-maritime-patrols/news-story/ce8e000ed97137afaa72a7094d823998.
[78]Department of Home Affairs, 2023-24 Portfolio Additional Estimates Statement, p. 49.
[79]Department of Home Affairs, Submission 75, p. 6.
[80]Explanatory memorandum to the bill, para. 20, p. 8.
An inquiry into the Migration Amendment (Removal and Other Measures) Bill 2024.
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