Migration Amendment (Removal and Other Measures) Bill 2024

The Law Council appreciates the importance of a well-functioning migration program and acknowledges that this is a legitimate objective. However, it has serious concerns about the Removal Bill and recommends that it not be passed.

The Law Council regards the Removal Bill as highly disproportionate and punitive in its effect on predominantly vulnerable individuals. The Removal Bill poses serious questions about Australia’s adherence and commitment to international law, both as to treaties that Australia has ratified and as to customary international law. No evidence of any serious or widespread problem to justify this response has been produced by proponents of the Removal Bill.

In summary, the Law Council’s concerns include:

• the wide-ranging Removal Bill’s removal pathway direction powers, enable the Minister to require individuals (removal pathway non-citizens, a group which the Minister can expand through delegated legislation) to take steps to facilitate their and their children’s removal from Australia. Non-compliance with such a direction is an offence;
• the Removal Bill would allow for such directions to be issued including in relation to fast-track applicants, who were subjected to a review process through the Immigration Assessment Authority (IAA) which was demonstrably unfair and is now being abolished. It appears that they may be issued where such persons have a request for ministerial intervention on foot;
• the lack of procedural fairness in the issuing of these directions;
• the insufficient safeguards that apply to their issue, placing Australia in potential conflict with its international law obligations;
• the very real possibility that the process of issuing a direction itself creates a situation of a real risk of significant harm if a person is removed to that country;
• the invidious position that parents of children are placed in under directions, having to choose between facilitating their child’s removal overseas despite fears of harm or persecution, or the parent being subject to a mandatory sentence of 12 months for failing to follow the directions—separating their family;
• the inclusion of a mandatory minimum sentence of 12 months for refusing or failing to comply with a ‘removal pathway direction’;
• 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 defence applies to the offence, 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;
• where foreign countries have previously failed to provide a pathway for person/s to be returned, the potential consequences for persons who will be returned are unknown;
• the Removal Bill conferral of a personal and discretionary power to designate ‘removal concern countries’ in the national interest, which will have a punitive Migration Amendment (Removal and Other Measures) Bill 2024 6 effect on nationals from those countries who are seeking to apply for an Australian visa from offshore and would otherwise meet the visa criteria; and
• the expansion of the Minister’s powers to revisit protection findings with respect to broader cohorts, when the existing powers are highly problematic given their absence of objective criteria, procedural fairness and extraordinary degree of discretion granted to the Minister in making such decisions.

Read the full submission below.

Last Updated on 15/04/2024

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