Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

We've seen someone rise to power in the US trying to get around the legal system, ignoring the courts and punching down on migrants. That sort of politics makes the world a worse place. The Migration Amendment Bill, though, is part of that race to the bottom on migration that we are seeing from Liberal and Labor. This bill builds on the cruel regime of offshore detention and processing that started over a decade ago, deliberately subjecting thousands of people to torturous conditions.

The High Court found in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs that the government cannot inflict punitive conditions—like ankle monitors and curfews—on people recently released from detention. Instead of listening to the courts and listening to the rule of law, the government sought not only to get around the courts but also to introduce sweeping changes to the migration system.

This bill will effectively allow governments to bribe other countries to take people that Australia is forcibly removing from Australia. Someone can be removed to a third country when they are without a visa or on a bridging visa R, a BVR, and cannot return to their country of origin. That is thousands of people. This law cannibalises part of Labor's failed Trump-style travel ban bill. In particular, it allows the government to force people to choose between indefinite detention or forced removal to a third country where they have no rights or protections. Based on past practices, these third countries are likely to be Nauru, PNG or even Cambodia. It could be countries with very poor human rights records and indeed where it can be a criminal offence to identify as LGBTIQ+.

Many other countries would point to laws like this to legitimately criticise Australia's human rights protections. Once people are deported to that third country, there are no protections, and the country does not even need to be a signatory to the refugee convention. It would even be lawful under this bill for people to be deported to a third country only to be placed in jail or immigration detention immediately on arrival. It is most definitely not a requirement of this bill that people are given work or other basic rights on arrival.

In fact, the only protections in this bill are for the decision-makers, who cannot be held liable for sending people to third countries even if they are aware it is likely to cause them serious harm. That's what this bill does. It provides immunity for the government and decision-makers to send someone to another country even if they are aware it is likely to cause that person serious harm. You know that the government is about to do something very bad when a large part of the bill is dedicated to making sure that people cannot be held to account for the decisions they are making. We've already seen in the context of Nauru and PNG that Australia effectively bribes third countries to commit what on any reasonable interpretation are human rights abuses on Australia's behalf, and it has lasting damage on people—to the people we send there but also to political and moral standards here.

This bill also gives the government the unrestricted ability to share criminal records with any other government to help facilitate the removal of people to third countries. This means you could have a situation where someone could flee Saudi Arabia because they criminalise homosexuality there, only to have the Australian government force that person into a third country that also criminalises homosexuality and share their criminal record. All of that is now permissible under this bill. That is what people are voting on here.

There are principles that we in the Greens hold dear and that most people in this country, I think, would hold dear. When someone commits an offence, they go to court, and the judge decides what happens. That is how the law works, and it only works because everyone is treated the same. The government here, though, wants to create a new quasi-legal system to allow politicians and bureaucrats to punish people outside the courts. That is a clear threat to the rule of law in this country.

Just this week, I met with people who were subjected to the cruel and unfair fast-track system. This system was abolished because Labor worked with the Greens to end it. However, those who were failed by that system remain in limbo, without a pathway to permanency. I met someone who came here alone as a child more than a decade ago. The government prevents him from studying. I met another man who was working in construction, building homes, and then, out of nowhere, the government stopped renewing his visa, and he has been unable to work. Under this bill, that person, who fled a country fearing persecution, lived here for more than a decade, worked here and paid taxes, can now be forced to choose between detention forever or forcible removal to a country like PNG or Nauru. That's what this bill does.

The government, we know, will try to demonise and dehumanise migrants and refugees when passing this bill. But make no mistake: the people who will be punished are those like the people rejected from fast-track—people who, in many instances, want nothing more than to live here and live a good life for themselves and their families. For this reason, we support the member for Wentworth's amendments, which seek to address some of the bills cruellest aspects such as reducing who can be forcibly removed. However, we still reject the fundamental assumptions that this bill makes that the government is able to extrajudicially punish people. The High Court made it clear that the law needs to be applied equally to everyone, no matter where you come from, and you cannot have bureaucrats and politicians punishing people outside the courts. That's what the High Court decided.

It does not need to be this way—as is set out in the legislation. The Greens are asking Labor to work with us to protect multicultural Australia and to stop the fear and division around migrants and refugees. For example, it was very concerning to hear even the minister for immigration in question time yesterday giving repetition to the argument pushed by the Leader of the Opposition that somehow people who are unable to find a home have migrants to blame. We are witnessing a very distressing race to the bottom again at this election where Labor and the Liberals outcompete each other as to who can punish migrants more. We have seen this happen at previous elections. One of the things about the Leader of the Opposition is that, when it comes to punching down on migrants, he'll just keep going.

I urge Labor to stop joining in this race to the bottom, because it's a race you can never win, and it will hurt multicultural Australia. It will hurt migrants and refugees. The only way to take on those who seek to demonise migrants and refugees is to stand firm on principle, including on the principle of the rule of law and the principles of multiculturalism. This election could be a very dirty and distressing race to the bottom on migration, and it looks like it's going that way. This bill is another example of that. You don't beat the politics of Dutton and Trump by rolling over; you beat it by holding firm to core principles.

Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment Bill 2024. Many of my constituents deeply care about our international obligations when it comes to people coming to Australia seeking protection. Over my years as the member for Indi, they have continuously urged me to say to parliament that refugees are welcome here. I'm concerned that the bill before us does not send this message. For this and other reasons, I will be opposing it.

In speaking to this bill, it's important to be reminded of the context in which it was introduced. It was introduced in response to the High Court's decision to strike down the government's legislation that was passed following their decision in the NZYQ case. It said that the government could not indefinitely detain noncitizens. In response to the NZYQ decision, the government, with the support of the opposition, rushed legislation through parliament that meant that any person released from indefinite detention must be subject to ankle bracelets and a curfew. I opposed this legislation at the time, in part because I had concerns whether it would withstand a High Court challenge. It turns out that I was right to be concerned, because the High Court then considered the case of YBFZ, an Iranian released following the NZYQ decision who was subjected to these restrictive curfew and ankle bracelet conditions. As it found with NZYQ, the High Court found in the case of YBFZ that the government is once again breaching constitutional principles of the separation of powers by imposing punishment on individuals when this is solely within the remit of the courts. Once again the government have received a High Court decision that doesn't suit them, and once again they are introducing legislation that seeks to get them out of this problem.

I will address a number of themes in this bill that I have a significant concerns about. Firstly, there are the provisions that are relevant to the NZYQ cohort and the recent High Court decision. Under the bill, the minister can still impose ankle bracelets and curfew conditions, but he must first be satisfied that the imposition of these conditions is necessary to protect the Australian community from serious harm. This is an improvement on the previous legislation, and I very much accept that some of the released individuals may indeed pose a risk to community safety, and we absolutely must respond to this risk. However, legal experts have expressed views that the legislation may not resolve the issue of whether the imposition of the curfew and monitoring conditions is punitive or reasonably necessary. Constitutional expert Professor Anne Twomey is quoted as saying:

It's fairly likely someone will challenge it, and there is a reasonable chance it will be struck down.

I cannot in good faith support a bill unlikely to withstand yet another High Court challenge. It is important to remind ourselves that every High Court challenge to government legislation costs a significant amount of taxpayer dollars. I must be able to satisfy myself that the legislation I'm voting on is protected as much as possible from this occurring, and, right now, I cannot assure myself of this in this particular case.

I now want to move to the other provisions of the bill that really have nothing to do with NZYQ and YBFZ. First, under the bill there are now broad powers for the minister to reverse a protection finding. Just sit with that. This is a deeply concerning issue. The Asylum Seeker Resource Centre said:

… refugees who have been living in our community for years can be exposed to deportation …

This includes people who have Australian citizen family members.

Second, the bill provides expansive powers for the Australian government to deport people to unspecified third countries. The minister says this is about deporting people who have no legal right to be in Australia. I seriously question which people we're talking about. Under the bill, we're not just talking about people that have criminal records. We're potentially talking about a much wider group of people, including people that have lived in and contributed to the Australian community many years. It could include people that haven't been found to be owed protection, because they've been subject to the extremely flawed fast-track process. Further, under the bill the government can now pay countries to take people they're deported to. This could create a very real risk of a new offshore warehousing program. If the Australian public want to know how much the government is spending to do this, that will only be revealed by freedom-of-information requests or Senate estimates hearings. I've got real concerns about ensuring the transparency of such a use of taxpayer money.

Third, I'm concerned about provisions in the bill that give the Commonwealth civil liability immunity. This goes beyond a long-held principle that the government should be subject to the same liabilities as any individual. The Commonwealth has previously paid significant amounts of compensation for actions that have taken place in regional processing countries. While the amendments are prospective and do not extinguish claims for conduct that's already occurred, they will—make no mistake—significantly limit the rights of persons in immigration detention to seek compensation from the Commonwealth in the future. According to recent research conducted by the University of New South Wales, the risk of post-traumatic stress disorder was 20 times higher for people held in offshore detention. But, if this bill passes, these people will have no legal rights to ensure the Commonwealth is responsible for causing this harm.

Since this bill was introduced, constituents have written to me, urging me to oppose it. One constituent said, 'This bill is a continuation of the dehumanising treatment of people seeking asylum who, through no fault of their own, are unable to safely return to their own country.' Another wrote to me: 'In this bill, it appears the major parties are competing with each other in their efforts to be the most hardline.' And another said: 'Both major parties pursue this unconscionable abuse of the world's most vulnerable people for political pointscoring. It's confounding.'

When considering this bill, I am also reminded of the tireless work of Rural Australians for Refugees, who have chapters right across my electorate of Indi. Through their work and, more importantly, through their actions they've supported refugees through fundraising and sponsorship. I know that many Australians, like these constituents of mine, are compassionate and humane. They expect their government to be the same. But, with this bill, their expectations are not being met. I urge the government to consider amendments to the bill to ensure it is consistent with their objective of removing serious offenders from Australia, as they have stated, and not just any noncitizen. I also urge the Senate to send this bill to a full inquiry for adequate scrutiny so that we can understand the full impact of these proposed laws. Until I see improvements and understand this impact, I will not be supporting this bill.

James Stevens (Sturt, Liberal Party, Shadow Assistant Minister for Government Waste Reduction) Share this | Link to this | Hansard source

I start by thoroughly agreeing with the member for Indi that the Migration Amendment Bill 2024 should go to a Senate committee. That's the position we have outlined. The lead speaker, the member for Wannon, made it clear that in principle we hope to support this bill if it indeed does what the government claims it will, but regrettably the government have made these claims before and this is a subsequent piece legislation they are bringing into this place.

It's nearly 12 months after the NZYQ decision was handed down last November and we still don't have a proper legislative framework in place to deal with dangerous, hardened criminals who are out there reoffending against Australians as we speak. The November decision of the High Court was thoroughly foreseen in comments by Justice Gleeson months earlier in the High Court which clearly foreshadowed that there was a risk that this decision would be made and that the High Court would go down this path on the current arrangements that are in place to keep detained dangerous people who have had their visas cancelled, some of them child sex offenders and rapists and all sorts of heinous criminals, who we don't want to this country, who don't deserve to be in this country, who don't follow the laws of this country and who are not safe to be on the streets of this country.

Regrettably, despite a great deal of warning via Justice Gleeson's commentary months before, the government was completely flat-footed and caught completely by surprise when that decision was handed down and we immediately had hundreds of people let out onto the streets. Regrettably, the most tragic episodes in this whole sorry saga of government incompetence are the Australian victims of the reoffending of these criminals because they were released by this government. The government have tried to claim that they had to do it because of the High Court decision. We happen to be debating a year later legislation that they're claiming will fix this problem. Why weren't we debating it the day this decision was handed down? Why wasn't the now sacked minister on his game, on his brief, and having his department properly preparing this legislation which now we are told will address the issues of releasing these criminals into Australian society? Why was this bill not ready to go the day on which that decision was handed down? It is because of the complete incompetence and uselessness of the now removed minister from that portfolio.

This is why we have got a great deal of scepticism and concern in just taking the government at their word on these matters when they say, 'This legislation is going to address these issues.' They've said that before in this House. I concede that other members have made the comment that there are legal scholars making commentary about the risk of this being struck down again by the High Court and having constitutional issues. The previous speaker mentioned that we shouldn't be passing legislation through this chamber when we think it has a risk of being unconstitutional, which is an excellent point and is why people shouldn't have supported the misinformation and disinformation bill going through this parliament. That is the piece of legislation that has the highest chance of being struck down by the High Court as being unconstitutional. But, thankfully, that looks like it has Buckley's and none of passing the Senate.

We would like to see a proper Senate inquiry into this legislation because we're sick of passing legislation that the government says is going to protect Australians that subsequently fails to do so. There have been innocent Australians that have been victims of these awful criminals that were let back out into the community because of this government's incompetence.

We don't want to see legislation that doesn't achieve what it claims to, which is the track record of this government in this area of policy, and again let down the people of this country and leave them unsafe. We don't want to look at any more victims on the front pages of newspapers with black and blue faces, because someone that shouldn't be out on the streets in the Australian community has offended against them, because this government can't keep these people where they should be—off the streets and away from innocent Australians.

We are not standing in the way of the passage of this bill through the House of Representatives, and, of course, hopefully—there's a first time for everything—the government is right this time when they say that this legislation will address the enormous loopholes that have opened up which are letting these awful criminals walk the streets and offend against innocent Australians. But we do need to test this through a Senate inquiry because we've been told all this before and have been let down by this government making commitments about legislation that was meant to achieve the protection of Australian citizens in our society but failed to do so.

We commend the second reading through the House. In the Senate, we will be supporting a full inquiry into this legislation to properly probe and understand that it is indeed going to do what the government claims it will.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment Bill 2024. Just on 12 months ago, the High Court of Australia handed down a unanimous judgement in a case that is now known as the NZYQ case, confirming that detention is a form of punishment and indefinite detention of people is unlawful and unconstitutional. Given Australia's long history of political bipartisanship around the horrendous offshoring of those seeking refuge in our country, the court's finding was welcomed as a watershed moment in Australian legal history.

It could have been a watershed moment for immigration policy and this nation, more broadly. It could have been a critical juncture to interrogate the double standards that this country places on citizens compared to noncitizens, brown and black people compared to white. It could have been a moment to reflect on our treatment of noncitizens. Eleven years after reopening Australia's offshore processing regime, this could have been an opportunity to ask ourselves, how can we do better? Instead, the NZYQ case saw this government thrown into panic, rushing so-called emergency legislation to reinstate the status quo, and bowing to the opposition's political attacks and misleading narrative of community safety—I'm sorry, I'm going to start again, if I may.

Just on 12 months ago, the High Court of Australia handed down a unanimous judgement in a case that is now known as the NZYQ case, confirming that detention is a form of punishment and indefinite detention of people in this country is unlawful and unconstitutional. Given Australia's long history of political bipartisanship around the offshoring of those seeking refuge in our country, the court's finding was welcomed as a watershed moment in Australian legal history. It was a moment that should have seen our immigration system called more broadly to account and our government take the opportunity to reconcile itself with over 30 years of significant human rights breaches. Yet, rather than use this critical juncture to interrogate the double standards this country places on citizens compared to noncitizens, or to reflect on our treatment of noncitizens, immigrants and refugees, and the way politicians and the media have raged a campaign of relentless demonisation against them, the government, kowtowing to the opposition's political attacks and misleading narratives around community safety, was thrown into a state of panic and rushed through so-called emergency legislation to reinstate the status quo.

So 11 years after reopening Australia's offshore processing regime, we find ourselves yet again with a government determined to legislate its way around a legal finding. When it comes to almost any issue related to immigration in this country, the rhetoric that pours from the mouths of the people on both sides of this parliament is frequently abhorrent, and deliberately intended to support the ongoing operation of an egregious system that suits a political duopoly determined to frighten the masses into submission.

The laws introduced in response to the NZYQ case again attempt to criminalise and control people released from indefinite detention, forcing them to wear ankle monitors and follow curfews. Here we are again, with the High Court just last week ruling that these conditions are also an unlawful form of extrajudicial collective punishment. I know we shouldn't be surprised that, rather than accepting the legal finding of the High Court, we are here yet again debating a government's rushed attempt to ensure they can continue to impose their own political will, rather than abide by international law.

This bill not only seeks to reinstate monitoring conditions, including ankle monitoring and curfews, but also introduces sweeping power to deport thousands of people. According to the Kaldor Centre for International Refugee Law, this bill would allow the government to send more people to third countries, give the government sweeping immunity from being sued by people harmed when deported, allow it to revisit protection findings—meaning people previously found to be refugees could be returned to their home country—and impose harsh visa conditions for those who do stay.

To be clear, the safety of the community should always be top of mind. As such, this nation urgently needs stronger measures to address violence both broadly and specifically against women. But we must not lose sight of the human rights considerations. We need sustainable, long-term solutions, not reactive and rushed responses that feed off fear, equate foreign bodies with criminality, danger and distrust and ultimately embed inequity, continuing to support an us-versus-them mindset. The way we protect the community from the risk of individuals who have committed serious violence or sexual offences should be the same whether those people are citizens or not.

With all of that said, the fact of the matter is that this bill uses the latest High Court finding to go even further in introducing wide-ranging powers. It creates powers for the minister and other officials to collect or share details of a person's criminal history, including sharing that information with foreign countries. To be clear, this is illegal. In fact, the bill overrides the state and territory laws that make it illegal and validates any unlawful sharing of information that may have little to no relevance to the current situation, as the offence may have been committed in the distant past. While the government pats itself on the back for recently reforming privacy protection, it is at the same time granting itself the powers to invade the privacy of noncitizens.

Additionally, the bill enables the government to enter arrangements with foreign countries that would see us pay them to accept deported bridging visa R holders. Under this system, the person's bridging visa R would automatically be cancelled as soon as they have permission to enter and remain in a third country. In context, there are more than 200 people in Australia on BVRs, many of whom were released from detention following the High Court's decision. Yet, for this arrangement to be pursued by the government, there is no requirement to prove these individuals pose a risk to the community. There's no requirement for a person to have any permanent right to reside in the country they are sent to; there's no guarantee of their safety. In fact, the third country could legally detain people or even return them to their home countries to face serious harm or persecution. All of this will be conveniently paid for from our public purse.

We know how horrific the conditions in detention centres like Nauru and Manus Island have been. In fact, Betelhem Tibebu, a human rights activist and former refugee in Nauru, described it as a place with no privacy and no safety. She lamented the fact that she could not see her family, and she had no hope for the future. Another former detainee declared: 'It's not offshore detention. It's not a processing centre. It's a suicide centre.' A recent study found that refugees detained offshore for any amount of time face a 20 times greater risk of PTSD and other mental health problems compared with asylum seekers who are detained onshore for less than six months. Ultimately, as someone who has long argued for our nation to not only abide and uphold but champion international humanitarian law, I and my community firmly believe that Australia's law should leave no room for the possibility of prolonged detention here or offshore. That is why I moved a private member's bill last year to limit immigration detention to 90 days and why I continue to call for an end to this inhumane practice.

I recently spoke to a group of refugees who have been failed by the government's fast-track system. One of them, Milad Makvandi, fled Iran 12 years ago to escape from an oppressive regime that puts its citizens' lives at risk. He's worked as a truck mechanic since coming to Australia, paid his taxes and employed others. Despite his contribution to the community, his asylum application has been rejected several times, and he is still awaiting the decision of the Federal Court. People like Milad deserve to be given a clear pathway to permanent residency. Instead, many on bridging visas fear they could have their visas cancelled or not renewed at any moment. Under this new legislation, they could even be transferred to a BVR, leaving them vulnerable to deportation to a third country, where they could suffer detention or other harms. Even if the government doesn't intend to use these powers against people like Milad, the fact is that this bill makes it possible.

The bill also grants powers to revisit and overturn protection findings for 'removal pathway noncitizens'. The definition of this group would initially apply to refugees on certain bridging visas but could also be extended to other visa classes in the future, threatening people who have been living in our communities for years. Refugee status should be durable and lasting, and not open to reversal at a government's whim. To add insult to injury, the bill contains measures that would give the government and immigration officials immunity from civil liability for their actions in deporting people. To be clear, these provisions protect the government against accountability for the harm that people suffer when they're sent offshore. That means, for example, that if someone was sent to Nauru and was assaulted, they would have no recourse to hold our government to account.

People held in offshore detention have limited options to have their voices heard and legal rights tested. One of the few paths available to them is the tort law system. As a consequence, refugees have rightly used tort law to hold our government to account for damages and breaches of duty of care. This includes the largest human rights settlement to date, which happened in 2017, between Manus Island detainees and the federal government, following claims of negligence and unlawful detention. In addition, dozens of refugees have secured court orders to be brought to Australia to access urgent life-saving treatment unavailable on Nauru or Manus Island. I've heard from legal practitioners in this area about cases where a former minister refused to act on medical advice to bring to Australia people who were at serious risk of death. Civil liability claims were often the only way to secure these people's transfer to Australia, where they received the medical care they needed. Many were hospitalised, not just for weeks but for months after they were transferred, and many are still ill now.

Human rights organisations have warned that the provisions in this bill would close the door to these pathways for legal recourse and even necessary medical care. It's telling that the government feels the need to ensure immunity from being sued by people harmed when deported. I can't help but feel that the government is the last public entity I would ever want to give complete immunity to.

Ultimately, this legislation raises a number of human rights issues. The bill's own statement of compatibility with human rights references infringements against the rights to liberty and freedom from arbitrary detention, the right to an effective remedy, rights relating to equality and discrimination, and many more. The statement of compatibility with human rights also explicitly mentions Australia's obligations arising from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3 states:

No State Party shall expel, return … or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

It is frankly astonishing to see this passage being used in referencing a bill that the government is trying to rush through this House. In fact, many of the other rights listed, from privacy to equal treatment, would be equally trampled on by this legislation. The conclusion of the statement of compatibility says:

To the extent that the measures in this Bill limit human rights, they do so in order to maintain the integrity of the migration system and protect the safety of the Australian community.

Numerous human rights and refugee law experts in my community of North Sydney would argue otherwise. The measures contained in this bill must be thoroughly examined and debated to ensure Australia's immigration policies are just, humane and legal—an ambition that we would have to say is well beyond our reach in the current circumstances.

While it's good to see this bill being referred to the Senate Legal and Constitutional Affairs Legislation Committee, it is unreasonable to expect that committee to report back on it within just one week, given the substance and potential ramifications of this bill and the current workload of this parliament. The bill deserves proper scrutiny, and the government needs to be held to account. Ultimately—let's be clear—we need real, long-term solutions for the challenges we face as a nation when it comes to managing migration. I fear that those things are not contained in this legislation, and I am almost certain that, 12 months from now, the parliament will be back on its feet debating yet more flawed legislation, which will result from the court challenges to this latest iteration. Our community deserves better.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

The first priority of this parliament is keeping the community safe. I acknowledge the community's deep concern about the release of detainees from the NZYQ cohort, following the High Court's decision on indefinite detention last year. I share that concern. It's absolutely appropriate for this House to take steps to protect the public from those who have committed very serious crimes in the past and those who may pose a risk to the public in the future. A few of the provisions in this bill go to this kind of community protection, but most do not, and it is on those that do not that I would like to focus my comments.

Having consulted with the legal experts and refugee advocates, I have three key concerns with this bill. First, this bill contains very broad powers which go far beyond the scope of dealing with the people in the NZYQ cohort who have committed serious and violent crimes. The bill creates new powers to forcibly deport a very broad range of noncitizens to unspecified third countries without the need to show that they pose a risk to the Australian people. Noncitizens could be put in detention in Australia until such time as they can be deported. I understand that this could include refugees and people seeking asylum who have lived in and contributed to our community for years. So, understandably, I have been told that this bill is causing widespread concern amongst affected communities.

I'm particularly concerned by the potential impact on people who've been failed by the so-called fast-track process. These people arrived in Australia over a decade ago, and many were genuine refugees whose claims were never properly assessed. Labor has admitted that the fast-track process was neither fast nor fair, abolishing a process and the body that administered it. I have met numerous people in this cohort—numerous honest, hardworking compassionate people—who have been stuck in limbo for over a decade and just want to build their lives. Yet feedback I've received from refugee law experts is that those failed by fast-track could be subject to the deportation arrangements in this bill.

I want to share the story of one of them, which has been provided to me by the Asylum Seeker Resource Centre. Geetha fled Sri Lanka and applied for a protection visa. She was subjected to this fast-track process, and her protection application was refused by the department and the Immigration Assessment Authority without a fair opportunity to present her protection claims, which included experiences of severe gender based violence. After years in the courts, Geetha had sought ministerial intervention in order to lodge a new protection visa application and to raise her gender based violence protection claims. Geetha has been granted a six-month BVE on departure grounds while she waits the outcome of her ministerial intervention request. If the bill is passed, once Geetha's BVE expires she will be exposed to detention and deportation to a third country—including Sri Lanka, from where she fled gender based violence.

Beyond people like Geetha, I'm also concerned about others who may be unfairly affected, including those who have compassionate or compelling reasons to remain in Australia, such as being married to an Australian citizen or having Australian children—surely good reasons for you to stay in this country. Given the delays in visa processing, many of those people have been living in Australia for years and have laid down roots here.

I accept the minister's argument that Australia should have the mechanism to remove people who do not have the right to be here and who have a safe place they can go instead. I absolutely accept that. If an unlawful noncitizen without family in Australia is offered a safe place to live in New Zealand, it is perfectly reasonable for them to be made to take it. But, if a refugee who was failed by the fast-track system and has lived in Australia for a decade and has a partner and child here is being forcibly deported to Nauru, where they may be detained indefinitely with no rights, that's a very different situation.

They are the two extremes that we are contending with in this bill, and the nature of the third-country deportation arrangements is my secondary concern. While we all hope that Australia would enter into third-country agreements only with countries, such as New Zealand or Canada, with strong social safety nets and respect for the rights of refugees and individuals, there are no guarantees in this bill. The government has not provided clear information about which countries it plans to enter third-country arrangements with or about the rights that people will have once they arrive. This has led legal experts to raise concerns that this bill could allow for people to be held in foreign countries with no safeguards to ensure they are treated humanely—all at the Australian taxpayers' expense. They could be detained in places like Nauru, potentially indefinitely, and nothing in the bill requires that a lasting solution is found for them. The harms of Australia's offshore regime on Nauru and Manus Island are well documented, as is the huge cost to Australian taxpayers.

This brings me to my third concern, which relates to the lack of transparency and accountability in this bill. As the member for Indi rightly pointed out, there are no requirements in this bill to publish how much Australia is paying third countries to accept the people that we're deporting. I understand there are not even new requirements to publish how many people we are deporting and which countries they are going to. In an area where past Australian governments have a very chequered history when it comes to the morality of their actions as well as the value for money of offshore arrangements, it is vital that there is transparency over how these new provisions are being applied.

The bill also attempts to stop the government from being sued for any actions that it takes to remove people from Australia or for the subsequent treatment of those people in the third country. This may remove an important accountability mechanism for those transferred offshore, like the dozens of refugees who secured court orders to be brought into Australia to access urgent lifesaving treatment unavailable on Nauru or Manus Island. By shutting the door to future legal challenges, I am concerned that the government would effectively remove one of the few proven checks on its power in this area.

These are complex issues, and there are no easy answers. The bill has come about in part because the government's previous attempts to respond to the High Court's NZYQ decision have been rushed, poorly thought through and given limited opportunity for pulmonary scrutiny. In the end, the High Court found this parliament's rushed attempts to paper over the cracks in Australia's migration laws were unconstitutional, the possibility of which was pointed out by the crossbench on numerous occasions during the debate.

If we had an asylum process that was both fair and efficient, if safeguards were ensuring the safety and rights of people in the countries we were sending them and if we had more transparency over the arrangements proposed in this bill, I would be more willing to accept the minister's assertion that there is no reason why noncitizens without a visa should be allowed to stay in Australia. But history has shown that that's not the case, particularly for those failed fast-tracked visa holders. So I have major concerns with this bill, and I believe it warrants further legislative scrutiny.

The government has already made regulations, which the minister has stated allow him to 'continue to use curfews and electronic monitoring devices' on the NZYQ cohort, so there does not seem to be an urgent reason to pass legislation today. I urge the government to refer the bill for an inquiry and await the inquiry's report before attempting to pass it in either the House or the Senate.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

The saying goes that history repeats itself. This is certainly the case with ongoing back and forth between the High Court and the executive that has unfolded over the past year, the latest iteration of which is the Migration Amendment Bill. And while the High Court's actions reflect the separation of powers working as intended, the government's repeated attempts to thwart the court's intentions with patchwork legislation is concerning.

In late 2023, the High Court's NZYQ decision on the illegality of indefinite detention provoked a wave of bills to manage the criminal and political risk of the cohort of potentially dangerous individuals being released into the community. Community safety is critically important. There is absolutely no argument about that. The release of potentially dangerous and violent offenders, sexual predators and others into our communities absolutely requires a response, and, in some cases, targeted deportation may be warranted. However, the cohort of individuals affected by the High Court's decision-making is not homogenous. These people are not all the same, and imposing a one-size-fits-all approach on them is therefore flawed. Indeed, this bill captures people who should not be caught in it and goes far beyond the NZYQ group. All of these bills have been complex and rushed. In many cases, they have not undergone proper committee or external consultation, and many of their key provisions are the result of deals between the major parties, which I would argue, in some cases, have been politically motivated.

It has been over two decades since Australia began sending refugees and asylum seekers offshore, and our nation is still living with the stain of offshore detention on our national character. Humanity should be at the centre of any conversation about war and its consequences, and this principle must be the starting point for policymaking on migration and refugees. Indeed, Australia's conversation and history of policy in this space has been fought one, one which has not lived up to these ideals. I think that's obvious. Punishment is a matter for the courts, not any minister. Most refugees and asylum seekers are no threat to Australia, and they deserve to be treated with dignity, respect and compassion. These are core principles that should guide Australian migration policy—indeed, principles that I've spoken to on each of the bills the government has introduced to manage the NZYQ division.

Last century, Australia provided a home for those fleeing wars across South-East Asia, including those who fled the Vietnam War and the horrors of the Khmer Rouge in Cambodia. We welcomed people from war-torn Sudan, Syria and Afghanistan. We provided a safe haven for the highest concentration of Holocaust survivors in the world, and they and their descendants now call Melbourne and Sydney home. But our national conversation on refugees and asylum seekers this century has been horrible. It has again turned—indeed, degenerated—in just the past year, including rhetoric in recent months over visas for Gazan refugees and echoes of Donald Trump's toxic Muslim ban of 2017. I will say that we must not follow the path of the US on refugees and migration. Following the American people's decision on 8 November and the president-elect's stated policy of mass deportation, this is perhaps more important now than it ever has been.

But the Migration Amendment Bill 2024 debate does not reflect this sentiment. Indeed, it represents a broadening of the executive's power and goes well beyond the scope of NZYQ. The Human Rights Law Centre says it could apply to refugees and asylum seekers holding temporary visas, including those who've lived in Australia for years. These individuals have deep roots in our communities. It risks creating a system of deportation where decisions are made not based on due process but on politics. And the bill provides immunity for the government managing that system, even if people are being deported to environments where there are known risks of harm.

I reflect on the case of one of my constituents in Goldstein, currently on a temporary visa. This constituent is a father, a business owner, a taxpayer and an employer. This individual has been in a state of legal limbo for 12 years and lives under a cloud of uncertainty in relation to his ability to remain in our community. His wife was a refugee who's been granted Australian permanent citizenship. They have a child that was born in Australia. What is the outlook for this family under this legislation? Is this man, who is Iranian, facing deportation to a third country? This legislation exacerbates the anxieties felt by many like this across the nation. This is particularly the case for those who have been subjected to the appalling fast-track program for more than a decade and remain in ongoing limbo with limited rights to work, study and health care. I have met many of these hardworking people, some just yesterday, and they do not deserve this torture.

This bill would provide the government with unprecedented powers, including the ability to overturn protection pathways and deport people, uprooting them from their families and communities, to third countries via so-called reception arrangements—deportation regardless of the risks they individually may face at their destination or even the risks these individuals may pose themselves to the communities that live there, if they do have a criminal history. This is not a theoretical scenario. The government refuses to specify which third countries it may negotiate with or intends to reach agreement with.

I note the concerns of the Asylum Seeker Resource Centre that this may represent a continuation or escalation of the offshore detention policy by stealth. The government has not ruled out that the third country could be Nauru, for example. The bill does not rule out deportation to third countries that are not a signatory to the international refugee convention. It is entirely conceivable that an individual could be deported to a third country where they face persecution, discrimination and serious harm. It grants the minister authority to overturn protection findings and permits the government to share personal information with foreign entities and to withhold it from the Australian public. Only indirect transparency measures apply. The public, apparently, must rely on Senate estimates and freedom-of-information requests for insight into the government's deportation arrangements—or at least that's what the minister has told me. The legislation, as I've said, grants immunity to Commonwealth officers from civil claims related to harm caused during deportation processes, shielding government actions from proper legal scrutiny.

The High Court has repeatedly affirmed that the punitive measures of ankle bracelets and strict curfews represent executive overreach and are unconstitutional. The reintroduction of these measures in this legislation is a blatant attempt to circumvent the decision of the High Court. Rather than respecting the High Court 's repeated affirmations, the government is once again seeking to undermine them. This behaviour arguably risks eroding the judiciary's independence and also public trust. As I forewarned 12 months ago during the last iteration of this process, this legislation just sets the stage for yet another High Court legal contest. And again now, as constitutional expert Anne Twomey says:

It's fairly likely someone will challenge it, and there's a reasonable chance it will be struck down.

We must engage in meaningful consultation with legal experts, human rights advocates and affected communities to create policies that reflect our national character and ethical responsibilities. National security and compassion are not a zero sum game. We can govern with humanity as the guiding principle of migration policy. Indeed, we must. I've had many emails from constituents opposing this bill. Here's one. It says:

… will you publicly oppose this bill as it is inhumane.

We need to deal with this complex problem with a lot more understanding and compassion. Would you kindly let me know your thoughts and intentions.

Thank you for writing. Yes, I will let you know that I will not be supporting this bill in its current form.

Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Assistant Minister for Immigration) Share this | Link to this | Hansard source

I wish to point out to the House that the individuals that will be subject to the Migration Amendment Bill 2024 generally have very serious and/or lengthy criminal records and their visa cancellations have been determined based on the national interest and the expectations of the Australian community. In almost all cases before a person's visa is cancelled they are issued with a warning letter. Many of these individuals are issued with several warning letters—not one but two, three or four—before the decision is made to cancel their visa. In all cases, people are offered procedural fairness and the opportunity to respond to a prospective cancellation of their visa. We are talking here about individuals who have committed serious crimes and it is the expectation of the Australian community that they will no longer be able to hold a valid visa here in Australia. It must be recognised that we need a robust legislative framework that allows us to manage the migration system in the interests of the Australian people and, most importantly, meet the expectations of the Australian people about keeping Australians safe. There is no more important element of the system than decisions on who may come to Australia, who may hold visas whilst they are in Australia and who has to leave.

There is an ongoing problem that Australia faces in sending home individuals who will not cooperate with the department's removal efforts. Some of these people are in immigration detention and some are in the community on temporary bridging visas. In addition, there is a group of countries that will not accept individuals who are citizens of their country if that person has indicated they do not agree to go home. There are other countries that are very reluctant to receive their own citizens returning from Australia. This bill creates a ceasing event so that a bridging visa removal pending ceases once permission is obtained from another country for the holder to travel to and remain in that other country and a notification of grant of that permission or authority has been given. This will allow us to negotiate agreements with third countries about acceptance of noncitizens who have exhausted all avenues to stay in Australia but who cannot be removed to their home country.

I can confirm that Australia does not return individuals to countries in respect of which they have been found to engage Australia's non-refoulement obligation. That is an important point to make—that non-refoulement obligation will not change under this bill. However, for persons found not to engage Australia's non-refoulement obligation and who have exhausted all avenues for appeal and have no lawful basis for remaining in Australia we need to use all our tools and levers to remove them from this country.

Further, the bill provides that disclosure of personal information to foreign countries may be made in support of determining whether any noncitizens may be removed except where Australia's protection obligations are in play. This bill also includes amendments that would clarify that officers under the Migration Act and the Community Protection Board may continue to take into account spent convictions when making decisions or recommendations on community protection or character-related matters. The bill also includes amendments to ensure that sufficient legislative authority is in place to support unauthorised spending on third country resettlement and Commonwealth action in relation to third country resettlement should that be required.

The various provisions in the amending bill are necessary for maintaining a robust and effective removal program for those who have no right to remain in Australia but can no longer be detained. This bill sends a very strong signal about Australia's intentions and expectations of cooperation with removal efforts, and reinforces the integrity of the overall immigration system. But, most importantly, it is about ensuring that we are maintaining the safety of the Australian population, which is certainly what they expect from their government. I commend the bill to the chamber.

Karen Andrews (McPherson, Liberal Party) Share this | Link to this | Hansard source

The question is that this bill be now read a second time.

Question unresolved.

As it is necessary to resolve this question to enable further questions to be considered in relation to this bill, in accordance with standing order 195 the bill will be returned to the House for further consideration.