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  • Under pressure from High Court and Dutton, government rushes immigration bill

Under pressure from High Court and Dutton, government rushes immigration bill


The Albanese government’s refugee and asylum policy is in a mess. Andrew Giles, the Minister for Immigration, Citizenship and Multicultural Affairs, has been spooked both by the High Court twice and by Peter Dutton constantly. And that’s a dangerous combination. He has overseen the introduction of legislation which has been a gross abuse of the parliamentary process and which has left everyone uncertain about the proposed reach of the legislation. His Migration Amendment (Removals and Other Measures) Bill 2024 will be debated in the Senate in the coming days. How did it come to this?

There have been two High Court cases which caused government to review the operation of the Migration Act ensuring that government remains in charge of secure borders and of an orderly migration program. It’s always been accepted that there will be some people in Australia who are not citizens but who are deserving of protection, being unable to return to their home country where they would face the risk of persecution. But once a person who is not an Australian citizen and who has no valid visa has been found ineligible for protection, the Australian government is entitled to take whatever action is needed to return that person to their home country.

Every government since the Hawke Labor government has utilised detention as an instrument for separating non-citizens without visas from the Australian community. Last year the High Court considered the case of a Muslim Rohingya man from Myanmar who had committed a sexual assault on a child while in the Australian community.  This man (given the anonymous identifier NZYQ) was taken back into migration detention.  He had remained there languishing with no prospect of going anywhere. There was no way he could be returned to Myanmar where he would have faced the real prospect of persecution.  He would happily have gone to another country.  There was no other country on earth which would take a child sex offender.  The government claimed no option other than long term detention.

Determining NZYQ’s claim, the High Court returned to the tried and tested path of Australian jurisprudence set down in a case thirty years before.  Governments cannot impose punishment on individuals by ordering detention.  Such punishment can be imposed only by a court.  Governments can detain a person for a legitimate administrative purpose, but not as punishment.  In the migration field, that means that government can detain a person while processing their visa claim or their claim for protection, and government can detain a person while preparing to deport them. But government cannot detain them without end simply because there is nowhere else to send such a person.  Government cannot impose detention simply to keep a non-citizen segregated from the community.  So the High Court unanimously ordered the release of NZYQ.

This was the first spooking of government. If NZYQ were entitled to be released from immigration detention, who else would be so entitled?  And what could government do with people like NZYQ in order to protect the community once they were released into the community?  No sooner was NZYQ released than an Iranian man (given the anonymous identifier ASF17) who was a non-citizen without a visa and who had spent almost 10 years in immigration detention applied to be released into the community.  Unlike NZYQ, he was not entitled to protection from persecution.  Unlike NZYQ, he could have returned home.  He had applied for the relevant visa in 2015 and been refused.  He had then appealed unsuccessfully to the Federal Circuit Court and then to the Federal Court of Australia.  Having exhausted all avenues for remaining in Australia, he was being held in detention awaiting his return to Iran.  He would not go voluntarily, and he would not comply with departmental requests with assistance with the paperwork needed to organise his return to Iran. Iran is one of those countries which will not receive their nationals being sent home involuntarily.

When ASF17’s case came before the High Court, much was made of the claim that he was a bisexual who would face the real prospect of persecution back in Iran because his wife had found him in bed with another man. After the decision in NZYQ, ASF17 had appeared before a judge claiming that his detention was unconstitutional.  But he failed completely to establish any claim.  As the High court put it: ‘[T]he primary judge did not accept the truthfulness of the account given by ASF17 of having been caught by his wife in bed with a man in Iran, did not accept that ASF17 was telling the truth about why he did not want to return to Iran, and did not accept that ASF17 was willing to be removed to a country other than Iran. The primary judge found that ASF17 did not have a genuine subjective fear of harm in Iran and that the reason ASF17 was refusing to undertake voluntary actions to assist in his return to Iran was that he wanted to remain in Australia.’ 

Adopting previous reasoning, the High Court said: ‘[A] detainee cannot, in effect, create a circumstance which negatives any reasonable likelihood that he can be removed in the foreseeable future by withholding his consent or cooperation to a particular avenue for removal and specifically to removal to the country from which he came.  That, in a nutshell, is what ASF17 has tried and failed to do.’ 


'When it came to the content of the bill and its shoddy rushed drafting, the Australian Human Rights Commission gave three examples of the overreach of the proposed provisions which would make it a criminal offence with mandatory imprisonment for a person not to co-operate in their removal from Australia.'


The High Court dealt with the matter promptly and unanimously. ASF17 will remain in detention until he decides to co-operate with his removal to Iran. But in the meantime, the government had been spooked a second time fearing that people like ASF17 would be ordered for release into the community.

Minister Giles introduced his Migration Amendment (Removals and Other Measures) Bill and the government demanded that it be passed within 36 hours. There was none of the usual community consultation prior to the drafting of such a bill. The government wanted none of the usual parliamentary process prior to the passage of the bill. It was a disgrace. The government simply wanted to be seen to be more strict and uncompromising than Peter Dutton in getting unvisaed non-citizens out of the country. 

Here was a minister of the crown who only last September was boasting about the setting up the Australian Refugee Advisory Panel.  He told a conference: ‘The importance of lived experience in shaping national and international dialogue and policy cannot be overemphasised. … [That’s] why we’ve established the Australian Refugee Advisory Panel — providing a formal mechanism for meaningful refugee participation in Australia’s international engagement…. It is time that Government walk the walk on meaningful participation for refugees — not just talk the talk.’  And what was the reaction of the Refugee Advisory Panel to this bill?  They told the Senate’s Legal and Constitutional Affairs Committee: ‘Despite its formal advisory role, there was no consultation with the Panel ahead of the introduction to parliament’ of the Bill.  The panel strongly urged the Government to abandon the Bill ‘in its entirety’.  The panel took the extraordinary step of going public rather than simply making representations to government which had proved useless.  The nine members of the panel put their name to a submission to the parliamentary committee stating:

‘The Panel normally seeks to advise the Government directly. But we are making this public submission given the extraordinary nature of the Government’s attempt to pass the Bill, the destructive impact of the Bill on refugees and people seeking asylum if it becomes law, and its potential negative effect on Australia’s obligations under international law.  … The members of the Panel have seen and heard the anxiety about the Bill among people seeking asylum, including our friends, family and community members.’

When it came to the content of the bill and its shoddy rushed drafting, the Australian Human Rights Commission gave three examples of the overreach of the proposed provisions which would make it a criminal offence with mandatory imprisonment for a person not to co-operate in their removal from Australia. The net was cast so wide that bureaucrats would be able to include ‘women with Australian citizen children who have no basis for a visa in their own right, and who are victim survivors of family violence’; persons who ‘may (still) have proceedings on foot with respect to their protection claims’; and persons who have ‘judicial review proceedings on foot’. The Commission recommended that at the very least, ‘a procedural fairness step may be included prior to the issuing of a direction (as proposed by the Law Council), requiring the Minister to provide notice that the person is being considered for a removal pathway direction. The subject of the notice would then be provided with an opportunity to explain why their removal is not appropriate.’

The government has been further spooked by Peter Dutton when addressing what is to be done with non-citizens living in the community who have been released from prison, having served their prison terms for criminal offences of which they have been convicted.  Australian courts are well used to dealing with laws which provide for renewed ongoing detention for some classes of serial offenders.  Those laws quite properly require that any ongoing detention be ordered and supervised by a court.  Governments can’t just put people in the slammer or curtail their liberty!  Absent such an order, a convicted criminal who has done their time is entitled to their freedom regardless of the likely threat to the community. The same approach should be taken when dealing with non-citizens. Of course, a court would be able to give due weight to the increased risk to the community occasioned by a past offender being a non-citizen without community links and supports.  It would be intolerable for government to discriminate against non-citizens allowing government to keep convicted non-citizens in long-term detention for their offences while ensuring that convicted citizens are detained only for the length of their sentence imposed by a court.

It’s time for the government to return to due process in this whole field. It’s time to call out the spooking. It’s time for the minister to consult with bodies such as his very own Refugee Advisory Panel and to provide credible answers to the concerns of organisations such as the Human Rights Commission and the Law Council of Australia.





Fr Frank Brennan SJ is the author of Tampering with Asylum (University of Queensland Press, two editions, 2003 and 2007). He was a recipient of the Humanitarian Overseas Service Medal for his work in Timor Leste when Director of the local Jesuit Refugee Service, and a recipient of the Australian Centenary Medal for service with refugees and human rights work in the Asia Pacific Region.


Topic tags: Frank Brennan, Referendum, Indigenous Voice, Constitution, Reconciliation



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Existing comments

Good stuff, Frank! Giles bows not simply to party pressure but also to the Opposition that has simply wedged the government on any issue likely to engage and potentially divide the polity for fear that the next poll, rather than the merits of the case in question, may be lost by those who prefer uncontroversial presidential style pollies to others elected to grapple with, consult and eventually discern what their position ought to be on matters of troubling moral import.

The PM has done the same thing on the LGBT+ exemptions issue, thereby leaving the matter to those who prefer a frilly-lizard approach on this question, like the Australian Catholic Bishops Conference who haven't consulted the laity on this matter.

Not only is wedge-politics morally unjust, it departs ominously from the Westminster tradition, which is that a Member of Parliament is NOT a delegate but a representative and, as such, entitled, if not contextually obliged to have their say as well as consult their constituents before voting, rather than submit to the Whip.

In this shameful way we see the steady decline of the parliament, the dictatorship of the executive and the diminution of the Courts.

Michael Furtado | 14 May 2024  

I’m disappointed and heartily disillusioned with the Labor government who promised justice and compassion for refugees and asylum seekers. I voted for their humanitarian policies and have been bitterly critical of their about face.
This proposed Bill, being rushed through parliament is inhumane and unAustralian. The government is being spooked by Mr Dutton and voters who are being brainwashed by Liberals.
I’m hoping the Green Party & many Independents will vote against this bill.

Monica Davis | 17 May 2024  

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