Rather than rushing through the Migration Amendment (Removal and Other Measures) Bill 2024, the Senate must step up and refer this legislation to a parliamentary committee, the Law Council of Australia has underscored.
“This Bill presents serious rule of law and human rights concerns and should not be passed by our Parliament without proper review,” Law Council of Australia President, Mr Greg McIntyre SC said.
“The fact it has already been passed by the House of Representatives shifts urgent responsibility onto the Senate to take action to give this Bill the scrutiny and consideration it requires.
“The Law Council observes – as it did in the context of the recent Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) – that consultation and transparency are lacking in the introduction of the Removal Bill, and that rushed law making is inherently undesirable.
“We have many issues with this legislation.”
The Law Council has strong reservations about certain aspects of the Removal Bill, including:
• its apparent use to pre-empt a High Court ruling;
• its removal pathway direction powers, which enable the Minister to require individuals (‘removal pathway non-citizens’) to take steps to facilitate their removal from Australia. Non-compliance with such a direction is an offence;
• its inclusion of a mandatory minimum sentence for refusing or failing to comply with a ‘removal pathway direction’ in proposed s 199E(2);
• the proportionality of prescribing a maximum sentence of five years imprisonment for failing to comply with such a direction, noting that the failure may involve relatively minor conduct which is not harmful or dangerous;
• While a reasonable excuse exception applies, it is not a reasonable excuse that the person has a genuine fear of suffering persecution or significant harm if removed to a particular country, is or claims to be, a person, in respect of whom Australia has non-refoulement obligations or believes that they would suffer other adverse consequences if required to comply with the direction;
• its conferral of a personal and discretionary power to designate ‘removal concern countries’ in the national interest under proposed s 199F. This will have a punitive effect on nationals from those countries who are seeking to apply for an Australian visa and would otherwise meet the visa criteria; and
• the ability to direct parents to act on a child’s behalf (199D(5)) – with no legislative safeguards for consideration of what is in a child’s best interest being taken into account other than considering that they can remove a family unit together.
“In effect, this Bill will implement mandatory sentencing,” Mr McIntyre said. “As we have warned before, mandatory sentencing results in harsh and unjust punishments because it tries to apply a theoretical blanket standard to the real life, complex circumstances that surround each criminal act.
“Personal, discretionary powers of the Minister, to be exercised in the national interest, are in most circumstances not subject to administrative or judicial review. These kinds of powers are inherently problematic from an accountability perspective.
“Although the Removal Bill contains certain safeguards, including with respect to the proposed removal pathway direction power, and the proposed designation of removal concern country power, these do not appear to be sufficient to address the Law Council’s concerns about the Bill. The Bill requires further democratic scrutiny and the people it will impact deserve more time and care to be taken.”
