Chapter 2Key issues
2.1On 7 May 2024, the Legal and Constitutional Affairs Legislation Committee (thecommittee) tabled its report for the inquiry into the Migration Amendment (Removal and Other Measures) Bill 2024.
2.2Whilst there are material differences between the Migration Amendment (Removal and Other Measures) Bill 2024 and the Migration Amendment Bill 2024 (the Bill), some of the raised in evidence for that inquiry are identical or similar to the issues raised for the current inquiry. This chapter highlights some of the key issues raised in respect of Schedules 1 to 6 of the Bill in the same order that they were presented.
Cessation of certain bridging visas
2.3Submitters remarked on the proposals in Schedule 1 of the Bill that would:
establish a ceasing event for a Subclass 070 (Bridging (Removal Pending)) visa (BVR) (proposed section 76AAA); and
extend sections 197C and 197D of the Migration Act 1958 (Migration Act) to capture removal pathway non-citizens, which would then enable the minister to decide that non-refoulment obligations do not apply to the non-citizen.
2.4The Asylum Seeker Resource Centre (ASRC) explained its concern, as follows:
Currently the Minister has the power to overturn a ‘protection finding’ in relation to a person who is an unlawful non-citizen. In practice, this mainly applies to people in immigration detention who do not have a visa. The Bill seeks to expand these ministerial powers to people who are lawful non-citizens (i.e. people who are visa holders and not in immigration detention), including people who are BVR holders and certain [Subclass 050 (Bridging (General)) visa (BVE)] holders.
2.5The Human Rights Law Centre (HRLC) described the latter proposal as an ‘erosion’ of the refugee protection system:
The Bill seeks to erode Australia’s refugee protection system by significantly expanding the Minister’s power to overturn existing protection findings. Itwould allow the Minister to determine that any “removal pathway non-citizen” who was previously assessed as a refugee is no longer owed protection.
2.6The HRLC suggested that, rather than expanding section 197D of the Act, that provision should be repealed in its entirety, as it fundamentally conflicts with Australia’s international obligations:
…the Bill seeks to expand upon a power that is already in conflict with Australia’s obligations at international law through amendments that would allow the Minister, in an unspecified process, to unilaterally review protection findings for visa holders, some of whom have been in the community lawfully for years.
2.7The Law Council of Australia (Law Council) recognised that ‘having an orderly, well-functioning migration program is a legitimate goal (indeed duty) of Government’. However, it argued that provisions in the Bill—such as in the first proposal—could be inconsistent with a number of Australia’s international obligations, rule of law principles, YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2024] HCA 40 (the YBFZ case), administrative law principles and common law rights.
‘Removal pathway non-citizen’
2.8Submitters argued that the proposed definition of ‘removal pathway non-citizen’ in section 5 of the Migration Act is too broad. Consequently, the Bill would capture more non-citizens than the cohorts affected by NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (the NZYQ case) and the YBZF case and have greater impact on individuals and communities.
2.9The Refugee Council of Australia (RCOA) agreed that the removal powers contained in the Bill would extend beyond the ‘few hundred people released from detention as a result of the NZYQ High Court ruling’. The RCOA posited that ‘thousands of people’ could be affected by the Bill, including in the situation where a minister could:
…effectively manipulate visa categories and criteria to suit policy agendas or political motives. Such expansive powers, vested in a single office without sufficient oversight, risk being abused, particularly in ways that may undermine the fairness and integrity of the immigration system.
Departmental response
2.10The Department of Home Affairs (Home Affairs) reiterated the threefold purpose of the Bill, as set out in the Explanatory Memorandum (EM) (seeChapter 1), and, in relation to strengthening the legislative framework, commented:
The Bill contains a set of provisions that are intended to strengthen the legislative framework that underpins the removal of individuals who have no right to remain in Australia, including to third countries, where that is consistent with Australia’s international obligations. Together these changes are necessary for maintaining a swift, robust and effective removals program for those where the duty to remove, as set out in section 198 of the Migration Act, has arisen.
2.11Home Affairs especially noted that the Bill does not expand the cohort of people who are eligible for removal, an assessment repeated by Mr Michael Burke, First Assistant Secretary, Immigration Policy, Immigration Group, Home Affairs:
…this bill does not change the cohort that is liable for removal. Minister Burke has made clear the government's view is that people who have no legal right to remain in Australia should depart. This bill does not change the obligation on the department to effect removal of people. It does not change the expectation that people that have no legal right to remain should depart Australia. What it does is it helps with reducing impediments that the department can face in discharging its legal duties to remove people from Australia that have no legal right to remain.
2.12The minister, in his second reading speech, affirmed that, if removal is required, ‘we will of course exercise our removal powers in accordance with our non-refoulement obligations’.
2.13Ms Clare Sharp, Group Manager, Legal, and General Counsel for Home Affairs, added that the Bill reinforces compliance with Australia’s international non-refoulement obligations:
…it reinforces it if you look at the way the bridging visa cessation provision set out in section 76AAA is structured. If a person has applied for a protection visa then the BVR will not cease. If they have an ongoing protection visa application then the bridging visa will remain in effect regardless of the fact if a third country did issue them with a visa or permission to enter. Similarly, the information disclosure provisions are very clear that we can't disclose information about a person to a country to whom we have got a protection finding in place.
Civil liability immunity
2.14Submitters questioned the proposals to create civil liability immunities for the Commonwealth, the minister and officers of the Commonwealth, for acts or omissions done in connection with removals from Australia, including under offshore processing arrangements.
2.15According to the National Justice Project (NJP):
These proposed amendments to the Migration Act effectively remove access to the courts for those who have been harmed physically and mentally by the Australian Government, by its officers or by any person in a foreign country.
2.16The NJP noted that the EM identifies a range of other remedies but contended that those remedies are not available:
…those alleged pathways are effectively blocked by privative clauses in the Migration Act or they are neutered by the refusal of consecutive governments to heed the concerns of the Commonwealth Ombudsman or the Australian Human Rights Commission who do not have the power to force the government to act on the serious harms that may be experienced by individuals removed offshore. Accordingly, for many individuals, the only recourse for the grave harms suffered offshore is through civil claims.
2.17The HRLC submitted that the Australian government is seeking to evade accountability for harm caused in removing people from Australia:
While the Australian Government has repeatedly claimed that it owes no duty of care to people subjected to offshore processing, Australian courts have found otherwise on an interlocutory basis, and various [United Nations] bodies have concluded that Australia exercises effective control over regional processing centres. The inclusion of these provisions in the Bill reveals an awareness on the Government’s part that people are likely to suffer harm if removed to third countries, and the Government is likely to be legally responsible.
2.18In the HLRC’s view:
The Australian Government should not be permitted to wash its hands of responsibility for the inevitable harm that will occur if it chooses to warehouse people in third countries indefinitely. The Committee should treat the attempted exclusion of civil liability as a foreboding acknowledgment of the harm that these arrangements are likely to cause.
2.19The Law Council considered that the ‘blanket immunities’ that the Bill would insert into sections 198 and 198AD of the Migration Act might be contrary to rule of law principles: ‘no one is above the law and that all people should be held to account for breaches of the law, regardless of their rank or station’.
2.20In relation to section 198AD, the Law Council submitted:
[The proposal] would appear to be an attempt to deny a duty of care to persons subject to offshore processing or removal to a third country. This is despite the fact that, since the inception of offshore processing, many individuals have been compensated due to the significant harm caused as a result of such detention. If for example, a person was injured or killed during the process of removal or on arrival to a third country was detained in an offshore processing centre, and a duty of care was owed in relation to that person, the person or their family would be denied the ability to claim for such neglect.
2.21The Law Council presumed that the ‘the Government sees legal action against officials for their conduct in the course of removals as something other than genuine attempts to assert individuals’ legal rights’.
Disclosure etc. of criminal history information
2.22Submitters argued that the Bill would give the Australian government broad and unlimited power to share personal information with unknown individuals and organisations within Australia, which would comprise a breach of privacy.
2.23The HRLC submitted, for example:
Under current law, the Minister and officers of the Department are subject to restrictions on how they may deal with personal information. TheDepartment of Home Affairs is subject to the Australian Privacy Principles set out in the Privacy Act 1988 (Cth) (Privacy Act), which limit use and disclosure of personal information. Breaches of the Australian Privacy Principles can attract civil penalties and court-ordered injunctions.
2.24The RACS suggested that the minister or Home Affairs could disclose information related to ‘individuals being deported or visa holders and [the Bill] is not clear on what stage of the process such information would or could be shared’. Similar to the HRLC, the RACS was concerned that the immunities would directly conflict with Australian privacy standards.
2.25The Law Council queried the definition of ‘criminal history information’. Itssubmission referenced paragraphs 66–67 in the EM and contended that the High Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 has made clear:
…the Minister does not presently have the power to take into account, including for the purposes of the ‘character’ provisions, offences in respect of which the sentencing court has decided not to record a conviction, or spent convictions.
2.26Home Affairs maintained, however, that this is not the case:
The Bill clarifies that the collection, use, and disclosure of criminal history information (including information about spent convictions) by the Minister or an officer of the Department is, and always has been, authorised for the purpose of informing, directly or indirectly, the performance of a function or the exercise of a power under the migration law or for providing advice or recommendations in connection with those functions or powers. This is essential to ensure the migration system can operate effectively without placing the Australian community at unacceptable risk.
Disclosure etc. of information to foreign countries
2.27Submitters argued that the Bill would give the Australian government broad and unlimited power to share personal information with foreign governments, which would comprise a breach of privacy (proposed section 198AAA of the Migration Act).
2.28The Law Council argued that, in addition to breaching privacy rights, which are recognised in the common law and international human rights law, the proposal to share vulnerable non-citizens’ information with foreign governments could put individuals at risk of refoulement under international refugee law.
2.29In addition to the risk of breaching Australia’s non-refoulement obligations, the RACS stated the disclosure:
…could encompass a wide array of information, including whether an individual has sought asylum without receiving ‘protection findings,’ aswell as other personal data, such as sexual orientation, that could expose them to harm.
2.30Home Affairs emphasised that ‘Australia does not remove individuals to countries in respect of which they have been found to engage Australia’s non-refoulement commitments. This Bill does not change that position’. Itssubmission restated that proposed section 198AAA is necessary:
…for purposes such as determining whether there is a real prospect of the removal of a removal pathway non-citizen from Australia becoming practicable in the reasonably foreseeable future, facilitating that removal and taking action or making payments in relation to third country reception arrangements and functions.
Third country reception arrangements
2.31Submitters questioned the proposal to empower the Commonwealth to take action or make payments in relation to third country reception arrangements.
2.32The Law Council submitted that the Bill does not contain adequate safeguards in relation to the third countries who receive returnees and payments from Australia. In its view, there should be minimum obligations:
There appears to be no obligation on countries that agree to accept returnees under the regime established by the Bill. These countries should be required, at a minimum, to be parties to the Refugees Convention and/or the International Covenant on Civil and Political Rights, as was the case in 2011 under the so called ‘Malaysia Solution’. At the very least, the Bill should make minimum stipulations for the eligibility of third countries making these agreements—for example, that they do not carry out the death penalty, do not allow for refoulement to the country from which they sought protection, do not criminalise acts or behaviour such as same-sex relationships etc that could potentially put a person at risk of the same harm as they feared from the country from which they sought protection originally.
2.33The HRLC expressed similar concerns in relation to the unidentified foreign countries:
The Bill sets out no conditions or restrictions on the countries with which Australia may enter arrangements. There is no requirement that a third country provide any level of safety or dignity for the people taken there. There is no requirement that the third country observe minimum human rights standards or commit to a particular standard of treatment of persons transferred.
2.34The Kaldor Centre for International Refugee Law, UNSW stated:
Under the existing legislation, section 198AB(3)(a)(i) has requirements that non-refoulement obligations be considered before a country is designated as a regional processing country. That same requirement is not found in relation to the third-country resettlement options that are envisaged in this bill.
2.35The HRLC argued that previous third country arrangements for the transfer of migrants and refugees have been fraught or defective, and ‘it is doubtful whether any third country will agree to accept people Australia wishes to deport’. Further:
Countries which are more likely to be willing to accept monetary incentives to enter a third country reception arrangement are those in need of development aid or economic support…Seeking to displace Australia’s responsibilities onto developing nations is not only unconscionable, it also means host nations are less likely to have the systems and structures required to properly support people and ensure their rights are protected.
2.36The Law Council contested the Financial Impact Statement in the EM, arguing that ‘the Bill has potentially significant financial implications’, which should be clearly identified and acknowledged:
There is evidently a financial impact from these amendments in terms of the costs to set up and maintain third country reception arrangements. The costs of removal are high, and they are unlikely to be recouped from non-citizens who are removed to any third country. As an example, practitioners report that a recent removal of a non-citizen cost AUD$100,000 (principally due to the cost of a dedicated charter flight). Such costs are unlikely to be repaid, and will be borne by the Commonwealth…[In addition, payment to third countries] can be based on non-binding agreements, and there appears to be no real limitation on their use. It should be noted by Parliament that, according to practitioners’ experience, these payments are likely to be significant in dollar terms.
2.37The RCOA raised similar concerns, noting the current expense associated with the offshore processing system:
The current offshore processing system is extraordinarily expensive and a huge cost for Australian taxpayers. The Government has allocated $604.4 million for offshore processing in 2024-25, an increase of $40.6 million on actual spending in 2023-24. The total allocation for offshore processing since the policy was reintroduced in 2012 is now $12.8 billion.
Community protection test
2.38Submitters argued that the revised community protection test in the Bill, and the Migration Regulations 1994, as amended by the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth), would continue to raise issues of constitutionality and invite further challenge in the High Court.
2.39The HRLC, for example, submitted:
Provisions of the Bill together with the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) seek to avoid the operation of the High Court’s decision [in the YBFZ case] and permit the Minister to continue imposing the very same punitive conditions on Bridging R Visa holders, pursuant to a reformulated legal test...While curfews and electronic monitoring will only be imposed in more limited circumstances, the reformulated test does not change the prima facie punitive nature of curfews and ankle bracelets - it allows the Government to continue imposing conditions that limit people’s freedom and bodily integrity.
2.40In addition, the HRLC remarked:
The Court made clear that the Government cannot punish an entire group of people merely because of their visa status. It described the curfew and monitoring conditions as “a form of extra-judicial collective punishment” based on membership of the NZYQ cohort and noted that fundamental protections against arbitrary interference with liberty and bodily integrity apply equally to citizens and non-citizens.
2.41The Law Council expressed its view that the community protection test in proposed paragraph 76E(4)(b) of the Migration Act is ‘highly likely to be the subject of a further challenge’ and is potentially objectionable on two bases:
- first, that it still may not be compatible with the High Court’s ruling in YBFZ, and
- second, that it is to be included in section 76E, which is headed ‘Rules of natural justice do not apply to decision to grant certain bridging visas’, such decisions, going as they do to life and/or liberty, should be subject to the fundamental administrative law principles of natural justice.
2.42Putting aside issues of constitutionality, the Law Council voiced its concern that only the courts should be able to authorise restrictions on a person’s liberty with a preventative purpose:
…the Law Council has long considered that when the state imposes a restriction on a person’s liberty, not for punitive purposes but in order to pre-empt and prevent criminal activity, it may only do so where the restrictive measures, such as the imposition of a curfew or ankle monitoring device, have been ordered by a court. There should be an opportunity [for] the affected person to make submissions and adduce contrary evidence. Acourt should only issue an order of this kind if the court is satisfied, to a high degree of probability, that such an extraordinary measure is necessary and reasonable, for example to prevent the commission of a relevant serious offence. A decision by the Minister as proposed under the Bill’s provisions fall short of these parameters.
2.43The RACS highlighted that neither the Bill nor the EM ‘outline the process by which the Minister would assess the “risk” posed by a visa holder’. For this submitter, the lack of clarity suggested that the process would be left to the minister’s discretion.
2.44The Law Council suggested that measures—such as in the Bill—which seek to test the bounds of the separation of powers doctrine ought to be resisted:
The High Court’s judgment in this matter should be respected and adequate time and scrutiny should be taken to ensure that legislation passed in response is likely to be held valid.
Departmental response
2.45Home Affairs advised that the proposed amendments to section 76E of the Migration Act respond to the High Court decision in the YBFZ case. Inparticular, they provide for ‘a procedural fairness mechanism for individuals who have had electronic monitoring or curfew imposed on their visa’ (seeChapter 1, paragraphs 1.33–1.37).
2.46Home Affairs noted that the High Court decision in the YBFZ case was partially based on a negative framing of the test for the imposition of certain visa conditions (the monitoring and curfew conditions).
2.47Ms Sharp advised that the community protection test has been revised and is now significantly different:
The new test requires that the conditions may only be imposed if a two-pronged test is met. The first part of the test is that the minister must be satisfied on the balance of probabilities that the holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence. And then second limb, if he is so satisfied, is the minister must be satisfied on the balance of probabilities that the imposition of the condition—that is, electronic monitoring or a curfew, which is in addition to the other conditions that are automatically imposed on the visa, which can include daily reporting, requirements not to go near schools—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.
2.48Ms Sharp said that ‘it is quite an involved test’ with a ‘substantial package of documentation’ needing to be provided and considered by the decision-maker, which can take a significant amount of time. She emphasised, however, that due consideration is afforded to each case:
In addition to the risk of a constitutional challenge, like any administrative decision, these decisions are open to merits review or judicial review. Ofcourse we want to get our decisions right. We strive to apply the law correctly in everything we do. But there are multiple avenues of review that we're mindful of.
2.49Ms Sandra Jeffery, Assistant Commissioner, Immigration Compliance Operations, Immigration Group at Home Affairs, described the role of Operation AEGIS, a joint Australian Border Force and Australian Federal Police operation to manage compliance of the NZYQ cohort in the community.
2.50Ms Stephanie Foster, Secretary of Home Affairs, noted that the capacity within Operation AEGIS has been expanded by 66 per cent following the NZYQ case. Further in the two weeks since the High Court handed down its decision in the YBFZ case, the department has been implementing the revised community protection test ‘working through the cohort from the most serious risk to community safety’.
2.51Home Affairs noted that proposed paragraph 76E(4)(b) would align the Migration Act with the community safety test provided for in the amended Migration Regulations. As explained by Ms Sharp:
If we do not make this act amendment, we'll have a reference in section 76E to the old test. So it will be sitting out of alignment with the regulations. That's, at best, from a legal point of view, very untidy and, at worst, introduces uncertainty into the framework that we'd like to avoid…I think having that misalignment could cause questions to be asked about what test the minister should apply at that second-stage consideration. As I said, we very strongly believe the amendment to section 76E should be made… the bigger risk is more to do with the fact that we want the minister, or their delegate, to take decisions under section 76E promptly. That procedural fairness mechanism is a really important part of the system. We would maintain that visas granted pursuant to the new regulation are valid, but we would be very concerned about people not having access to the procedural fairness mechanism applying the correct test as dictated by the High Court.
Committee view
2.52The Migration Amendment Bill 2024 aims to strengthen the legislative framework relating to the removal from Australia of certain non-citizens who are on a removal pathway.
2.53As highlighted by the minister, a fundamental principle of the migration system is that ‘if you are in Australia, you should either be a citizen or have a visa’.
2.54The committee continues to maintain that it is appropriate for the Australian government to have the power to remove non-citizens who have no lawful right to remain within the country.
2.55Following the High Court’s decisions in the NZYQ and YBFZ cases, there are people in the community on a BVR, a large proportion of whom were subject to monitoring and curfew conditions but who now need to be reassessed under the revised community protection test. The reassessment must be accurate, thorough and in full compliance with Australian law, all of which will take a little time.
2.56The committee accepts Home Affairs’ evidence and agrees that community safety must be the highest priority for the government: it is, in fact, incumbent upon the government to take appropriate measures to ensure the safety of the Australian community.
2.57The committee acknowledges the High Court’s decision in the YBFZ case that two visa conditions previously applied to BVR holders (paragraphs 070.612A(1)(a) and (d) in Schedule 2 of the Migration Regulations) were constitutionally invalid.
2.58The committee understands that the amended Migration Regulations respond to the High Court ruling, and represent the Australian government’s best efforts, supported by legal opinion, to address the situation.
2.59The committee acknowledges the concerns raised in relation to Australia’s human rights obligations, including by the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, and the potential impact of the Bill on specific individuals and communities.
2.60While recognising these concerns, the committee is reassured by the EM and Home Affairs’ evidence that any limitations on human rights are necessary to maintain the integrity of the migration system and protect the safety of the Australian community.
2.61The committee considers that the Bill provides appropriately balanced measures to protect the Australian community and mitigate the risks posed by individual non-citizen offenders.
2.62The committee recommends that the Senate pass the Bill.
Senator Nita Green
Chair