Review of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021
The submission to the Parliamentary Joint Standing Committee on Intelligence and Security (PJCIS) in response to its review regarding the operation, effectiveness and implications of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (the Migration Amendment Act) was prepared by the Law Council of Australia.
An objective of the Migration Amendment Act was to ensure that the Migration Act 1958 (Cth) does not authorise or oblige an officer to remove a person found to engage Australia’s international obligations relating to non-refoulement1 to the country from which they seek protection, in breach of those obligations.2 Prior to its passage, the Federal Court of Australia had made findings to the effect that the existence of non-refoulement obligations did not stay the obligation to remove a person to the country from which the person was owed protection.3
The Law Council is not aware of information that suggests that the Migration Amendment Act has failed to achieve that objective. To that limited extent—it has been effective.
The Law Council of Australia is grateful for the input of the Migration Law Committee of its Federal Dispute Resolution Section, its National Human Rights Committee, the Law Society of New South Wales (LSNSW), the Law Institute of Victoria (LIV), the Law Society of the Australian Capital Territory (LSACT) and the Queensland Law Society (QLS) in preparing this submission.
1 Essentially, non-refoulement obligations prohibit Australia from returning a person to a State where they face a certain risk of a particular kind of harm or harm for a particular reason relating to their essential characteristics. These obligations are particularised in footnotes 10, 11 and 12 below.
2 Commonwealth, Parliamentary Debates, House of Representatives, 25 March 2021, 2 (Alex Hawke, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs).
3 AJL20 v Commonwealth  FCA 1305,  and -.