Chapter 1Introduction
1.1On 19 November 2024, the Senate referred the provisions of the Migration Amendment Bill 2024 (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 26 November 2023.
1.2The Bill would amend the Migration Act 1958 (the Migration Act), to strengthen the legislative framework relating to the removal from Australia of certain ‘non-citizens’ who are on a ‘removal pathway’.
1.3The Explanatory Memorandum (EM) to the Bill specifically highlights that the Bill aims to:
…support ongoing effective management of holders of a Subclass 070 (Bridging (Removal Pending)) visa (BVR) in the community and facilitate arrangements for their removal to receiving countries…[and] clarify the information that may be taken into account when making decisions or recommendations in relation to community protection or character-related matters and for other purposes under the Migration Act and the Migration Regulations 1994 (the Regulations).
Conduct of the inquiry and acknowledgement
1.4In accordance with its usual practice, the committee advertised the inquiry on its website and called for submissions by 22 November 2024. The committee received 114 submissions, which are listed at Appendix 1.
1.5The committee held a public hearing in Canberra on 21 November 2024. A list of the witnesses who appeared at the hearing is at Appendix 2 and the Hansard transcript of evidence is at Appendix 3.
1.6The committee thanks those individuals and organisations who made submissions and who gave evidence at the public hearing, particularly in view of the short timeframe.
Scope and structure of the report
1.7This report comprises two chapters:
Chapter 1 provides contextual information relating to the Bill, identifies its key proposals, and notes consideration of the Bill undertaken by other parliamentary committees; and
Chapter 2 examines some of the key concerns raised in relation to the Bill, before setting out the committee's findings and recommendations.
Note on references
1.8In this report, references to the Committee Hansard are to the proof (that is, uncorrected) transcript. Page numbers may vary between the proof and the official transcript.
Purpose of the Bill
1.9On 6 November 2024, the High Court of Australia (the High Court) handed down its decision in the case of YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCA 40 (the YBFZ case).
1.10The plaintiff (YBFZ) was a stateless man who was released from immigration detention following the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (the NZYQ case).
1.11YBFZ was subsequently granted a BVR on conditions that included the wearing of an electronic monitoring device (the monitoring condition) and the requirement to remain in a specified location generally between 10.00pm and 6.00am (the curfew condition).
1.12The High Court held:
…the imposition of each of the curfew condition and the monitoring condition on a BVR by the Executive Government of the Commonwealth is prima facie punitive and cannot be justified. Clause 070.612A(1)(a) and (d) of Sch 2 to the Migration Regulations infringe Ch III of the Constitution and are invalid.
1.13That same day, the Minister for Home Affairs, the Hon Tony Burke MP, announced:
The Australian Government is taking immediate steps to protect community safety following the High Court’s ruling in the YBFZ case. Regulations are now being finalised that will allow for an adjusted process for electronic monitoring devices and curfews to be used…I will introduce new legislation to support those regulations. The legislation will also strengthen the Government’s power to remove people who have had their visas cancelled to third countries…The Government imposed strict conditions on the NZYQ cohort because community safety is our top priority…The security and safety of the Australian community will always be the absolute priority for this Government.
1.14On 7 November 2024, the Minister for Home Affairs introduced the Bill into the Parliament, stating that the decision of the High Court was ‘not the one the government wanted—but is one [for which] we were prepared’.
Key provisions
1.15The Bill comprises six schedules that set out proposed amendments to the Migration Act. The key amendments in each schedule are outlined below.
Schedule 1—Cessation of certain bridging visas
1.16Item 1 in Part 1 of Schedule 1 would insert new section 76AAA into the Migration Act to establish a ceasing event for a BVR: the visa would cease to be in effect immediately after a mandatory notice is given to the visa holder by the minister. The notice must state that new section 76AAA applies to the BVR holder, with the circumstances in which that provision applies set out in new subsection 76AAA(1), including that the non-citizen has permission (however described), granted by a foreign country, to enter and remain in that other country.
1.17Items 5–9 in Part 2 of Schedule 1 would amend sections 197C and 197D of the Migration Act to broaden the application of these provisions to include removal pathway non-citizens. The term ‘removal pathway non-citizens’ would be defined in section 5 of the Act (item 4 in Part 2 of Schedule 1).
1.18The EM notes that the term ‘removal pathway non-citizen’ is broader than the term ‘unlawful non-citizens’ (defined in section 14 of the Migration Act), who are required to be removed from Australia under section 198 of the Act. The EM specifically notes non-citizens released from immigration detention on BVRs following the decision in the NZYQ case and certain lawful non-citizens holding a Subclass 050 (Bridging (General)) visa (BVE).
The intention is that non-citizens who hold a BVR should be required to cooperate with efforts to facilitate their removal, or to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future…To facilitate the removal of [the BVE] cohort in the event that they do not depart Australia as expected, the definition of removal pathway non-citizen also includes lawful non-citizens who were granted this visa and who, at the time the visa was granted, satisfied a criterion relating to them making acceptable arrangements to depart Australia.
1.19The EM states that the amendments in items 5–9 in Part 2 of Schedule 1 would enable the minister ‘to make a decision that a protection finding would no longer be made in relation to a non-citizen who holds a visa as a removal pathway non-citizen’.
Schedule 2—Civil liability immunity
1.20Schedule 2 would amend section 198 of the Migration Act to create immunities from civil liability for an ‘officer’ (defined in section 5 of the Act), officer of the Commonwealth (including the minister) or the Commonwealth in relation to certain acts or omissions done in connection with the removal from Australia to a foreign country of certain persons or under certain arrangements.
1.21Proposed new subsection 198(12) would provide that no civil liability is incurred by an officer or the Commonwealth in relation to any act or thing done, or omitted to be done, in relation to the removal of an unlawful non-citizen under section 198 of the Act provided that the officer acted in good faith and in the exercise of the officer’s powers, or performance of the officer’s functions or duties under section 198.
1.22Proposed new subsection 198(13) would provide that no civil liability is incurred by an officer, an officer of the Commonwealth or the Commonwealth in relation to any act or thing done, or omitted to be done:
(a) by the officer or officer of the Commonwealth in good faith and:
(i) in the exercise of the officer’s or the officer of the Commonwealth’s powers; or
(ii) in the performance of the officer’s or the officer of the Commonwealth’s functions or duties; or
(b) by a foreign country;
(c) by any person in a foreign country;
in relation to the acceptance or receipt by a foreign country, or ongoing presence in a foreign country, of a person removed from Australia under section 198 of the Act.
1.23The EM advises:
The purpose of new subsection 198(13) is to make clear that no civil liability attaches to an officer as defined in section 5 of the Migration Act, an officer of the Commonwealth, which includes the Minister, or the Commonwealth for acts done by an officer or officer of the Commonwealth in good faith and in the exercise of powers, functions or duties or acts or omissions done by a foreign country or any person in a foreign country in relation to the acceptance of a removed person by a foreign country or the person’s presence in the foreign country under or in relation to third country reception arrangements.
1.24Item 2 in Schedule 2 would insert new subsections 198AD(11A) and (11B) into the Migration Act to provide similar civil liability immunities in relation to ‘unauthorised maritime arrivals’ (defined in section 5AA) detained under section 189 of the Act and removed from Australia to a regional processing country (defined in section 5) under section 198AD of the Act.
Schedule 3—Disclosure etc. of criminal history information
1.25Item 2 in Schedule 3 would insert new section 501M into the Migration Act to enable the minister or a departmental officer to collect, use or disclose to a person or body ‘criminal history information’ (to be defined in section 5)for the purposes of informing, directly or indirectly, the performance of a function or the exercise of a power under the Act or the Migration Regulations (proposed subsection (1)), despite any Commonwealth, state or territory law (proposed subsection (3)).
1.26Proposed new subsection 501M(2) would provide for secondary use and disclosure: a person or body in receipt of criminal history information from the minister or a departmentalofficer may collect, use or disclose the information for the purpose of providing advice or recommendations, directly or indirectly, to the minister or a departmental officer on matters relating to the performance of a function or the exercise of a power under the Migration Act or Migration Regulations.
1.27Item 4 in Schedule 3 would provide that the collection, use or disclosure of criminal history information by a person or body prior to the commencement of proposed new section 501M is, and is taken always to have been, as valid and lawful as it would have been if section 501M of the Migration Act, as inserted by this Schedule, had been in force when the collection, use or disclosure occurred (proposed sub-item 4(2)).
Schedule 4—Disclosure etc. of information to foreign countries
1.28Item 1 in Schedule 4 would insert new section 198AAA into the Migration Act to enable the minister or a departmental officer to collect, use or disclose information (including personal information) to the government of a foreign country for certain purposes and in relation to a removal pathway non-citizen or a former removal pathway non-citizen who does not hold a substantive visa or criminal justice visa (proposed subsection (1)).
1.29Proposed new subsection 198AAA(2) would set out the authorised purposes, including:
(a) determining whether there is a real prospect of the removal of the non-citizen from Australia under section 198 becoming practicable in the reasonably foreseeable future;
(b) facilitating the removal of the non-citizen from Australia under that section;
(c) taking action or making payments in relation to:
(i) a third country reception arrangement (within the meaning of section 198AHB); or
(ii) the third country reception functions (within the meaning of that section) of a foreign country[.]
1.30The EM notes that proposed new subsection 198AAA(1) would limit the types of individuals about whom information can be shared with a foreign country, and also the purpose for which information can be shared. In addition, proposed new subsection 198AAA(3) would protect non-citizens from having their information shared with a foreign country in circumstances where they may be owed, or have been found to be owed, protection in respect of that country.
Schedule 5—Spending authority for third country reception arrangements
1.31Item 1 in Schedule 5 would insert new section 198AHB into the Migration Act to provide that the Commonwealth may take action or make payments in relation to ‘third country reception arrangements’ (defined in proposed subsection (1)) or a foreign country’s ‘third country reception functions’ (defined in proposed subsection (5)):
(2) The Commonwealth may do all or any of the following:
(a) take, or cause to be taken, any action (not including exercising restraint over the liberty of a person) in relation to the third country reception arrangement or the third country reception functions of the foreign country;
(b) make payments, or cause payments to be made, in relation to the third country reception arrangement or the third country reception functions of the foreign country;
(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.
1.32Proposed new subsection 198AHB(3) of the Migration Act would clarify that proposed new subsection (2) is intended ‘to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action’.
Schedule 6—Subclass 070 (Bridging (Removal Pending)) visas
1.33Section 76E of the Migration Act applies to a decision to grant a non-citizen a BVR subject to one or more prescribed conditions (under regulation 2.25AD of the Migration Regulations) and, at the time of the grant, there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future (subsection (1)).
1.34As soon as practicable after making the decision, the minister must give the non-citizen written notice setting out the decision and invite the non-citizen to make representations as to why the BVR should not be subject to the prescribed conditions (subsection (3)).
1.35The minister must grant the non-citizen a BVR that is not subject to the prescribed conditions, if the non-citizen makes representations in accordance with the invitation and satisfies a test set out in paragraph 76E(4)(b).
1.36Item 2 in Schedule 6 would repeal and replace paragraph 76E(4)(b) of the Migration Act to align the test with the community protection test in the Migration Regulations, as amended by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 following the High Court’s decision in the YBFZ case (the new community protection test). New paragraph 76E(4)(b) would state:
(b) either:
(i) the Minister is not satisfied, on the balance of probabilities, that the non-citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or
(ii) if the Minister is satisfied, on the balance of probabilities, that the non-citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
1.37In his second reading speech, the Minister for Home Affairs stated:
Section 76E at the moment is not consistent with the new regulations. Theway the regulations have been drafted it will be some weeks before section 76E will be required to be used. Therefore, while it is important for this legislation to go through within a reasonable time, it does not have to be rushed through this week.
Examination by other parliamentary committees
1.38When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.39The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny.
1.40In relation to the Bill, the Scrutiny of Bills Committee identified five broad matters on which it is seeking advice from the Minister for Home Affairs, including, forexample:
the potential to unduly trespass on personal rights and liberties when taking actions to remove certain individuals to foreign countries and the imposition of monitoring and curfew visa conditions; and
the broad immunity from all civil and criminal liability for the Commonwealth and its officers.
the significant trespass on personal rights and liberties posed by the imposition of monitoring and curfew visa conditions, without the requirement for procedural fairness and based on the risk of future offending.
1.41The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament.
1.42In relation to the Bill and the Migration Regulations, as amended, the Human Rights Committee reported that the proposed legislative measures and the legislative instrument engage and may limit multiple human rights. This committee is also seeking further information from the Minister for Home Affairs.
1.43The EM states that the proposed legislation is compatible ‘in most respects’ with the human rights and freedoms that are required to be examined by the Human Rights Committee and:
…so long as policies, practices and procedures are in place to ensure that the powers provided in these amendments are exercised consistently with Australia’s human rights obligations, including in relation to removal to third countries. To the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system and protect the safety of the Australian community.