Dissenting Report from the Australian Greens

1.1The Migration Amendment Bill 2024 (the Bill) is a fundamental threat to Australia’s international obligations and multiculturalism in this country.

1.2This is legislation that is so extreme that even the Coalition at their worst moments did not present it to Parliament.

1.3As is clear from the way in which Labor and the Coalition worked hand in hand to have this one-week inquiry, Prime Minister Anthony Albanese has decided that he will form an anti-migrant alliance with Opposition Leader Peter Dutton, to push this appalling legislation through the Parliament.

1.4This builds on an appalling track record by Labor to invent novel and cruel ways to persecute people seeking asylum and migrants trapped in the system. It was Labor that first legislated for indefinite mandatory immigration detention in 1992 and it was Labor that legislated in 2013 so that no one who arrived in Australia by boat, regardless of their legitimate need for protection, could ever be resettled in Australia.

1.5The Bill now adds further shame to Labor’s record on migration. It adds unparalleled deportation powers to the Migration minister’s powers which can be used unscrupulously to deport tens of thousands of people from the country, regardless of their local connections and regardless of their need for protection.

1.6This Bill will allow the government to effectively bribe other countries to take people who are forcibly removed from Australia, among other concerns. Despite the inadequate timeframe, the Bill was roundly rejected in the Legal and Constitutional Affairs Legislation Committee hearing and submissions.

Impact of the Bill and Third Country Arrangements

1.7There are many concerning aspects to this Bill. However, it must be pointed out that the stated explanation for its passing, a purported response to the YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (YZBF) High Court judgment, is plainly untrue.

1.8This Bill seeks to introduce powers that far exceed the scope of the YBFZ findings and will impact far more people.

1.9The High Court found that the government cannot inflict punitive conditions on people, such as ankle brackets and curfews, as a form of punishment. TheHigh Court also found such actions were unconstitutional as they failed to adhere to the separation of powers between the courts and the Commonwealth. This court case follows a previous case, NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ), that impacted 246 people.

1.10In his second reading speech, Minister Burke claimed that the Bill was in response to the YBFZ finding the day before.[1] Minister Thistlethwaite’s second reading speech also made this false claim:

I wish to point out to the House that the individuals that will be subject to the Migration Amendment Bill 2024 generally have very serious and/or lengthy criminal records and their visa cancellations have been determined based on the national interest and the expectations of the Australian community.[2]

1.11Two points should be made about this statement, first, if it were true and this Bill was only targeted at people with ‘criminal records’, this is still not a legitimate reason to introduce such a punitive measure. If someone has committed an offence that is not a reason for that person to be stripped of their basic human rights, the proposition that this is the case is offensive.

1.12The second issue with this statement is that it is plainly untrue. This Bill will affect thousands of people, including refugees, people who have been in the community for decades and children.

1.13During the hearing, the Department of Home Affairs revealed that the removal powers in this Bill will impact some 81 373 people, this includes:

4452 people on a Subclass 050 (Bridging (General)) visa under departure arrangements;

986 people in detention;

193 people in community detention;

246 people impacted by NZYQ;

96 people on a Subclass 070 (Bridging (Removal Pending)) visa pre-dating NZYQ;

75 400 people without a valid visa.[3]

1.14As the Law Council of Australia (Law Council) noted:

This Bill goes beyond the ability to remove only those who may have had a visa cancelled on character grounds and be found to be owed protection, which is the ostensible basis for its introduction.[4]

1.15People captured by this law would also include people who sought asylum by sea, were sent to offshore detention and are currently in Australia and thousands of people who have been failed by the so-called Fast Track cohort.

1.16One of the people impacted by this Bill would be Farhad Bandesh, an artist, musician and winemaker, who sought asylum in Australia in 2013. He was found to be a refugee who is owed protection but was refused it by this and previous governments. As he explained during the hearing:

Under this law, if I am sent to a third country I will be tortured in detention. I will not be brought to safety. This is what the government wants for people like me. But we will not give up. There are more than a thousand people like me, in Australia, who suffered through the horrors of Manus and Nauru. Only 450 people will be resettled in New Zealand. The rest of us could be sent to a third country, under this Bill.[5]

1.17The content of this Bill also goes far beyond a response to recent high court cases, particularly as it pertains to third-country reception agreements. This aspect of the Bill allows the Australian government to enter into agreements where public funds are provided in exchange for a third country to take people from Australia.

1.18This agreement can then be used as a mechanism to enable the government to force people into indefinite detention who cannot return to their country of origin.

1.19There are also no basic protections for people under these third-country agreements. As the Law Council noted:

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’.[6]

1.20This issue was also raised by the Asylum Seeker Resource Centre (ASRC), which said:

Consequently, there is no obligation on a receiving country to treat people deported there in accordance with human rights standards and people could be exposed to indefinite detention, extradition or refoulement to country in relation to which they have been found to be owed protection, including under Australia's refugee status determination process. If people are refouled from a third country, this would be in breach of Australia’s obligations under the Refugee Convention.[7]

1.21The Human Rights Law Centre (HRLC) also raised the concerning omission of requiring other countries to meet even basic human rights obligations, including the rights of the child, stating:

There is no protection from ‘third country reception arrangements’ for people with family in Australia. There is no protection from such arrangements for children. Any person who is subject to the removal duty in s 198 of the Act could be ripped from their family and community and exiled offshore.[8]

1.22The Department of Home Affairs said that these concerns did not need to be included in the Bill because the Australian government has existing commitments outside of this Bill. As the department explained in this exchange at the hearing:

Ms Sharp: it assumes that we would have an agreement with a country that did not have those obligations. What we're trying to say is: very clearly, the Bill sets out a mechanism for us to make arrangements with third countries and Australia will continue to meet its refoulement obligations. Those two things go side by side.

Senator SHOEBRIDGE: If you wanted to limit it to countries that were parties to the refugee convention, if that's the intent, why isn't it in the legislation?

Ms Foster: That was not my answer, Senator. I said the basis of what you're putting to us assumes that we would do that, and that's not an assumption that I think you can make.

Senator SHOEBRIDGE: I'm just saying that you can—and you clearly can—and for some reason there's no restriction on doing it. I'm wondering why there is no restriction on sending it to third countries which don't have those same refoulement obligations.

Ms Sharp: There are a range of things any government would take into account as it's thinking about whether to enter into a third-country arrangement.[9]

1.23This is a deeply unsatisfactory response given the breadth of powers this Bill seeks to introduce. As the HRLC made clear in the hearing:

…we take it to mean that the department will rely on unlegislated, unenforceable administrative arrangements as the only barrier to a child being ripped apart from their family, with their parent being sent to a third country or, indeed, the child themselves being sent to a third party. Needless to say, that's a wholly insufficient safeguard for a scheme that contemplates permanent exile.[10]

1.24The history of similar agreements also undermines assurances that the government would not enter into agreements with countries that do not adhere to the same human rights standards as Australia. For example, Malaysia is not a signatory to the 1951 Refugee Convention, and Papua New Guinea (PNG) criminalises homosexuality, yet both are countries Australia has either sought or entered into third-country arrangements with.

1.25Assurances that the government will act in the correct way without explicit, clear and enforceable requirements are inadequate. This was a position shared by the Office of the United Nations High Commissioner for Refugees (UNHCR):

UNHCR considers that the measures proposed in the Bill constitute externalization of international protection because they attempt to shift to a foreign country the responsibility for meeting the international protection needs of persons subject to such an arrangement, or accountability for leaving such needs unmet, and they provide inadequate safeguards in law to guarantee international protection, thereby making such proposed third country arrangements unlawful.[11]

Exclusion of Liability for Officials

1.26The concerns raised in this Bill about protections for people subjected to this Bill are compounded by sections 198 and 198AD of the Migration Act, which exclude officials from civil liability claims.

1.27As the Law Council noted in its submission:

…no one should be regarded as above the law and all people should be held to account for a breach of the law, regardless of rank or station. Legislation excluding officials’ liability for potential rights breaches threatens to undermine this important principle.[12]

1.28This exclusion of civil liability claims is contingent on officials working in ‘good faith’, an ambiguous phrase that would still allow for officials to act negligently.

1.29However, this weak provision about the need to act in good faith is not included in the areas of the Bill that cover civil liability claims once a person is in a third country. As the Law Council wrote:

The good faith requirement for official action in proposed subsections 198AD(11A) and (11B) only applies to Commonwealth officials; not ‘any person in a regional processing country or another foreign country’ to whom these immunities would also apply. This is a potential oversight that could provide an overly broad immunity to foreign actors dealing with returned individuals. If the drafting deliberately excludes foreign actors, then it would appear to tacitly acknowledge the harm that is likely to be caused by the relevant removals.[13]

Non-refoulment and international obligations

1.30This Bill has completely insufficient safeguards to protect Australia’s intentional obligations as previously discussed, chief amongst them non-refoulment. Thecurrent Bill not only challenged Australia’s non-refoulment through third-country resettlement but also the possibility of people being sent on to another country after this point (chained re-refoulment).

1.31As the UNHCR explained:

The principle of non-refoulement protects individuals not only from removal to their countries of origin but also to any other territory where they have reason to fear persecution or other serious harm, thereby ensuring protection from indirect (or chain) refoulment. Removal to a third country where a person’s rights are not threatened per se but where no protection is available against onward transfer to a place of persecution or serious harm is therefore prohibited.[14]

1.32The minister, in his second reading speech, claimed that:

Australia does not return individuals to countries in respect of which they have been found to engage Australia's non-refoulement obligation.[15]

1.33This is disputable as Australia has returned people seeking asylum and refugees to the country from which they have fled, with notable instances relating to offshore detention.[16]

1.34The ASRC also challenged the government’s position and echoed concerns raised by the UNHCR in explaining:

…there is no obligation on a receiving country to treat people deported there in accordance with human rights standards and people could be exposed to indefinite detention, extradition or refoulement to countries in relation to which they have been found to be owed protection, including under Australia's refugee status determination process. If people are refouled from a third country, this would be in breach of Australia’s obligations under the Refugee Convention.[17]

A Bill designed to fail

1.35This Bill has many deep flaws and will inevitably be challenged in the courts if it passes.

1.36The most striking aspect is that the Bill is nominally addressing a High Court finding that said the government cannot impose punitive conditions on the people impacted by the case. However, the Bill seeks to do exactly that. As the Law Council pointed out:

The Law Council is concerned that this revised test may still not be compliant with the High Court’s decision in YBFZ because there is limited evidence to suggest that the proposed amendments to section 76E of the Migration Act are reasonably appropriate and adapted to a non-punitive purpose.[18]

1.37These issues were also raised by the HRLC that said during the hearing:

Rather than focusing on passing more laws that are constitutionally unsound and that will almost inevitably challenged, the government should be focusing on the fact that this small group of people cannot be punished yet again. The High Court told is this a year ago in NZYQ and they told us again last week in YBFZ.[19]

1.38There are also serious legal issues with the third-country agreements. Previously, these agreements have been legally tenuous both domestically and in third countries, as the HRLC explained:

Australia’s regional processing agreements or attempted deals with PNG, Cambodia and Malaysia were all found to be unlawful either domestically or in third countries. The only editing agreement with Nauru is plagued by alleged corruption and human rights abuses.[20]

1.39The government should not continue a cycle of reactionary legislation that seeks to undermine the courts. In doing so, it will only harm some of the most marginalised people.

Other concerning elements of the Bill

1.40There are numerous other elements of concern within this Bill, including but not limited too:

the punitive punishments that can be inflicted on people released from detention;

the expansion of the minister's power to overturn protection findings; and,

the sharing of criminal history with third countries, including retrospectively.

Alternative pathways

1.41This approach, to punish and discriminate against migrants and subject them to a different legal framework, is not necessary. There are fairer ways to ensure the functioning of the immigration system that the government is ignoring and actively impeding.

1.42The government has forced people into marginalised situations and then punished them for their marginalisation. The HRLC made the point:

Every year, some 60,000 people leave Australian prisons.48 Their sentences do not last forever and are designed to allow for their rehabilitation and re-entry into the community. Instead of building a parallel legal system for non-citizens which seeks to exile them forever, the Government should be investing in the programs and supports that can keep citizens and non-citizens alike out of the criminal legal system in the first place.[21]

1.43It does not need to be this way. The Refugee Council of Australia, in its submission, pointed to an analysis that showed the Australian government previously had a humane and effective way to ensure the immigration system worked.

1.44The Community Care Pilot and subsequent Community Assistance Scheme (and currently Band 5 of the Status Resolution Support Service) provided target casework services to people who were at the end of their visa pathway. Thisprogram achieved a 93 per cent compliance rate.[22]

1.45However, the current funding for this program under the ‘Asylum Seeker Support’ program in the Budget has been gutted 95 per cent since 2015–16, from $300 million to just $16 million.[23]

1.46The major parties have destroyed Australia’s immigration system and are blaming those impacted.

1.47The Australian Greens recommend that the Bill be rejected in its entirety.

Senator David Shoebridge

Member

Footnotes

[1]Hon Tony Burke MP, Minister for Home Affairs, House Hansard, 7 November 2024, pp. 36–37.

[2]Matt Thistlethwaite MP, Assistant Minister for Immigration, House Hansard, 20 November 2024, p.127.

[3]Senator David Shoebridge, Committee Hansard, 21 November 2024, p. 25.

[4]Law Council of Australia (Law Council), Submission 3, p. 7.

[5]Mr Farhad Bandesh, Activist and Partner, Human Rights Law Centre, Committee Hansard, 21November 2024, p. 1.

[6]Law Council, Submission 3, p. 18.

[7]Asylum Seeker Resource Centre (ASRC), Submission 7, pp. 8–9.

[8]Human Rights Law Centre (HRLC), Submission 2, p. 9.

[9]Ms Clare Sharp, Group Manager Legal, General Counsel, and Ms Stephanie Foster, Secretary, Department of Home Affairs (Home Affairs), Committee Hansard, 21 November 2024, p. 41.

[10]Ms Laura John, Associate Legal Director, HLRC, Committee Hansard, 21 November 2024, p. 13.

[11]Office of the United Nations High Commissioner for Refugees (UNHCR), Submission 9, p. 2.

[12]Law Council, Submission 3, p. 19.

[13]Law Council, Submission 3, p. 20.

[14]UNHCR, Submission 9, p. 2.

[15]Hon Tony Burke MP, Minister for Home Affairs, House Hansard, 7 November 2024, p. 36.

[16]The Kaldor Centre, POLICY BRIEF 11: Cruel, costly and ineffective: The failure of offshore processing in Australia, August 2021, pp. 11–12.

[17]ASRC, Submission 7, pp. 8–9.

[18]Law Council, Submission 3, p. 3.

[19]Ms Laura John, Associate Legal Director, HRLC, Committee Hansard, 21 November 2024, p. 5.

[20]HRLC, Submission 2, p. 9.

[21]Refugee Council of Australia (RCOA), Submission 5, p. 18.

[22]RCOA, Submission 5, p. 18.

[23]RCOA, ‘The 2024-25 Federal Budget: What it means for refugees and people seeking humanitarian protection, 14 May 2024’, www.refugeecouncil.org.au/the-federal-budget-what-it-means-for-refugees-and-people-seeking-humanitarian-protection/ (accessed 26 November 2024).