Proposed Deportation Laws

On 26 March 2024, the federal House of Representatives passed changes to the Migration Act 1958 that have been described as ‘the most draconian migration laws this country has seen in decades’. The Migration (Removal and Other Measures) Bill 2024 passed the House with opposition support and was introduced to the Senate yesterday. The Senate did not pass the Bill, instead referring the proposed legislation to a committee. This page outlines the proposed deportation laws and how they have been received.

What is proposed?

The proposed changes give the government powers to compel individuals who have no right to remain in Australia to co-operate with deportation and impose mandatory criminal penalties for those who do not.

Under the changes contained in the Bill, the government could compel a person to:

• sign and submit an application for a passport or other travel-related document
• attend an interview or appointment with a specified person
• provide documentation
• report in person to an officer or other person.

Failing to comply with directions would be a criminal offence with a mandatory term of imprisonment for at least one year and a maximum term of imprisonment for five years. A person found guilty of the offence could also be fined up to $93,000.

The Minister would also have the power to blacklist countries by designating a country a ‘removal concern country’. This would prevent citizens of the country from applying for Australian visas while the designation was in place. The only steps that the Minister must take before exercising this power is to consult with the Prime Minister and the Foreign Minister.

What prompted the proposed changes?

The government is attempting to pass the changes in response to last year’s High Court ruling in the matter of NZYQ v Minister that indefinite immigration detention is unlawful.

That decision of NZYQ overturned the 2004 decision of Al Kateb under which the detention of an unlawful non-citizen indefinitely was lawful as such detention was held to be administrative, rather than punitive, in character. In NZYQ, the court found that immigration detention for the purpose of removing a person from Australia is not lawful when there is no reasonable prospect of their removal occurring in the foreseeable future (as is the case when the person is stateless).

The changes are also being proposed in response to the matter of ASF17 that is currently before the High Court. That case involves an Iranian man who is refusing to co-operate with authorities in his deportation back to Iran where he claims he faces persecution. If his challenge is successful, this may lead other detainees in similar situations to be required to be released into the community.

Who will the new laws apply to?

The changes, if passed, will apply to ‘removal pathway non-citizens’. Under section 199B of the proposed legislation, this would include:

• unlawful non-citizens who are required to be removed from the country under section 298 of the Migration Act 1958
• lawful non-citizens who hold Subclass 070 (Removal Pending) Bridging Visas
• lawful non-citizens who hold Subclass 050 (Bridging (General) Visa) that was made on the basis the applicant was making arrangements to leave Australia
• lawful non-citizens who hold a visa prescribed for the purpose of this section.

The final point essentially means that the laws will apply to any other non-citizen that the Immigration Minister designates.

Rationale for the changes

In his Second Reading speech, Minister for Immigration Andrew Giles said that the measures were needed to address the noncooperation of noncitizens with the government’s removal efforts. Mr Giles said that this noncooperation was undermining the integrity of Australia’s migration laws.

The Minister stated that the Bill was intended to make it clear that unlawful noncitizens who are on the removal pathway are expected to leave voluntarily and must cooperate with attempts to bring about their removal.

It was also intended to make it clear that parliament expects foreign countries to cooperate to facilitate the lawful removal of their citizens from Australia.

Defeat in Senate

The Bill failed to pass the Senate due to opposition by both the Coalition and the Greens, who argued that the Bill could have unintended consequences and that an inquiry was needed. Senators opposed to the Bill further argued that the government had failed to make a convincing case for why the changes were needed urgently and that the proposed ministerial power to blacklist countries was ‘extraordinarily racist’.

Responses to the proposed deportation laws

The Bill passed the Lower House with the Coalition’s support but with opposition from the Greens and independents. The changes have also been opposed from within the legal profession, with the Law Council of Australia, The Refugee Council of Australia, Refugee Legal and other community legal organizations denouncing the changes.

The proposed deportation laws have been criticised for giving the minister excessive discretionary powers, for imposing a regime of mandatory detention that involves excessive penalties, and for jeopardizing the safety of asylum seekers. The government has also been criticised for attempting to rush the legislation through parliament without proper consultation.

The passage of the Bill through the Senate has been delayed for at least six weeks while an inquiry into the legislation is held.

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