The Guardian • Issue #2093

Draconian deportation bill

The Albanese government continues to sink to new lows attempting to rush through draconian deportation laws. Thousands of non-citizens could face deportation or mandatory jail terms of 1 to 5 years if the legislation is passed. Whole countries could be blacklisted and their citizens refused entry to Australia.

This legislation seeks to give the Immigration Minister new powers to incarcerate non-visa holders, including stateless people and those fleeing persecution.

“Australia has obligations to protect people fleeing persecution under international law but these proposed laws, again, have Australia punishing and criminalising people seeking protection here,” said spokesperson for the Australian Lawyers Alliance, Anthony Kerin.

BYPASSING THE HIGH COURT

The Migration Amendment (Removal and Other Measures) Bill is the second piece of legislation in less than 6 months attempting to get around a High Court decision that found indefinite administrative detention to be a form of punishment that can usually only be imposed by a court where a person has been found guilty of a crime.

On 8 November 2023 the High Court found in the case of a plaintiff identified as NZYQ, that administrative detention where there was “no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future” to be outside executive (in effect government) power.

As a result of that decision the government had to release around 140 detainees. Following the line taken by the by Opposition leader Peter Dutton, the government moved quickly to introduce new laws on 16 November subjecting those who were released from unlawful indefinite detention to 28 mandatory conditions restricting their movement and conduct, including electronic monitoring, curfews, and financial affairs.

While the Opposition and media have run a scare campaign about murderers and paedophiles being let loose and endangering the community, many of those released have never been convicted of a crime. Those who did commit a crime have served their time.

Court challenges have already been filed claiming these restrictions to be inherently punitive and hence beyond the powers of executive detention. In other words, those measures might also prove to be illegal.

“The government is not free to detain non-citizens at will, or to create another punitive detention regime to replace the one that was struck down,” the Human Rights Law Centre said.

This latest bill is an attempt to do just that. It goes even further giving the Minister for Immigration the unprecedented power to blacklist whole populations or groups of people from obtaining visas to come to Australia on a temporary or permanent basis.

CRUEL

The bill has three parts:

  1. Non-citizens who have “no right” to be in Australia should leave voluntarily and other countries should cooperate with Australia to facilitate the “lawful return” of their citizens.
  2. It becomes a crime for individuals not to cooperate with removal efforts where they have been given a direction to do so, such as apply for a passport. The penalty for non-compliance is a minimum 1 year up to five years jail sentence and a possible fine of more than $90,000.
  3. The Minister has new powers to designate a country as a ‘removal concern country’ if that country refuses to accept the forcible return of their own nationals. With a few exceptions citizens from that country would be prevented from making visa applications to Australia.

The bill criminalises anyone refusing to cooperate in their return to a country where they fear harm and persecution.

“This is an extraordinary abuse of the criminal process to coerce people, including those who fear persecution, to return to their countries,” CEO of the Refugee Council of Australia Paul Power said.

Those who could be affected include “unlawful non-citizens” (people without a visa, including those in immigration detention), Bridging (Removal Pending) visa holders, and other non-citizens on a removal pathway who hold a visa. This includes asylum seekers who arrive by boat who Australia treats as illegal entrants, contrary to international law. Incredibly, it includes any non-citizens prescribed in migration regulations, which could allow the minister to arbitrarily designate other groups.

These are powers found in an autocratic state, not a so-called democracy preaching human rights. They constitute a gross breach of Australia’s obligations under the Universal Declaration of Human Rights and Refugee Convention.

They are the actions of a self-styled “war time government” that has committed itself to a conflict unprecedented in history which would result in masses of displaced people, many seeking safety in Australia. Those people would all be barred.

BLACKLISTING COUNTRIES

Point 3 could see people from specific countries such as Iran, Afghanistan, Myanmar, South Sudan, or Yemen banned from entering Australia. The government has not indicated which countries are on its hit list, but did point out that the US and UK that have bans on citizens of specific countries.

It is a form of collective punishment which could have serious ramifications for Australia’s international reputation, currently being shredded by its support for Israel. It could also affect the ability of family members of immigrants to migrate to or visit Australia.

The Coalition supported the November bill passing it into law. MPs were only given a few hours to consider this latest bill which saw complaints from the Greens, independents, and the Coalition over the government’s haste. The Coalition still supported it in the Lower House, but joined the Greens and cross-benchers in the Senate blocking and referring it to a Senate legal committee for examination. The committee is to report by 7 May.

“It is a farce that this legislation has anything to do with protecting the Australian community; it is all about Labor protecting itself from being attacked by the Liberals for being soft on refugees,” said Ian Rintoul of the Refugee Action Coalition.

“As so often in the past, Labor is throwing more human rights principles overboard. This draconian legislation must be opposed.”

Labor should offer protection to those who seek asylum on our shores, or refuge from persecution or danger in their homeland. This bill must be defeated.

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