On 13 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)(‘Clarifying International Obligations Act’) was passed by both houses of federal Parliament, with bipartisan support. Its enactment was met with critique from refugee sector organisations, and defences from parliamentarians who voted for the law. It also attracted some media attention.
Unlike other significant laws, which are usually placed on the public’s radar before they are debated in Parliament, you probably didn’t hear anything about this one until after the fact. No public inquiry or formal consultation process was undertaken prior to this law being enacted. This is somewhat unusual. Typically, significant bills are referred to an inquiry, conducted by one of several parliamentary committees. This allows stakeholders, experts and members of the public to make submissions engaging deeply with the proposed legislation and drawing attention to effects or consequences that may have gone unnoticed during the drafting process. The inquiry stage is a forum for a genuine dialogue between legislators, those who will be affected by the laws they are deciding whether to pass, and those in whose names new laws are passed. It has helped many laws to be refined so that they better achieve Parliament’s goals, or so that they avoid unforeseen negative effects.
The lack of a meaningful dialogue around the Clarifying International Obligations Act is palpable. Drastically different views on how the Act will function and its likely effects have been expressed by Coalition and Labor members on the one hand, and refugee and migration law specialists on the other. The new amendments to the Migration Act 1958 (Cth) are complex, and they fit within a statute that is over 1,000 pages long. This creates a high risk that, if consultation with a broad range of stakeholders is skipped, important context will be missed by drafters.
Missing important context appears to be exactly what has happened here. The Clarifying International Obligations Act is a piece of legislation which pursues the unobjectionable goal of protecting people from being returned to countries where they would be at high risk of harm, but in a manner that is deeply flawed. As a consequence, the amendments embed new injustices within Australia’s migration law for more people than Parliament may have envisaged. They also increase administrative burdens on Department of Home Affairs immigration officers – again, perhaps more so than envisaged.
What the Clarifying International Obligations Act does
To get a sense of why I say this is the case, let’s take a few steps back and ask what this legislation is all about. Both major parties say that it was an essential move, necessary to prevent people with well-founded fears of persecution from being returned to places where they would be at risk of serious harm. When he introduced the legislation to Parliament, Immigration Minister Alex Hawke noted that Australia is party to many treaties that enshrine the international law obligation of non-refoulement. The Minister said:
Under these treaties, Australia has an obligation not to return individuals to situations where they face: persecution; a real risk of torture or cruel, inhuman or degrading treatment or punishment; arbitrary deprivation of life; or the application of the death penalty.
We take these obligations very seriously.
On the face of it, there is nothing to object to here. But let’s dig a little deeper. Australia has been bound by non-refoulement obligations under international law since 1954, when the Refugee Convention entered into force. Why, then, was it necessary for the Clarifying International Obligations Act to be passed, almost 70 years later, to ensure these obligations are adhered to? If they are truly taken seriously, why weren’t they already being adhered to?
The government and Labor say that the Act only became necessary because of a recent Federal Court decision, AJL20 v Commonwealth, in which a provision of the Migration Act – s 197C – was interpreted in a manner that was ‘inconsistent with the original intention of the Parliament’. This is, at best, a half-truth that ignores important context.
Section 197C was inserted into the Migration Act in 2014. To understand it, we also need to look at another provision, s 198. Section 198 says that a non-citizen who is in immigration detention and who has exhausted their visa options must be removed from Australia ‘as soon as practicable’. Section 197C says that, once this obligation to remove arises, ‘it is irrelevant whether Australia has non-refoulement obligations’. It’s a strange law to have on the books in a country that purports to take its non-refoulement obligations ‘very seriously’. Even stranger is that the introduction of s 197C was accompanied by the removal of most references to the Refugee Convention from the Migration Act, in order to undo the effect of High Court decisions which had regarded the Convention as relevant to its statutory interpretation.
In the AJL20 case, which formed the impetus for the Clarifying International Obligations Act, Bromberg J held that ss 198 and 197C mean exactly what they say – that a non-citizen who is out of visa options must be removed as soon as practicable, and that if the most practicable place to remove them to happens to be one where they would face harm, then, in Parliament’s words, that is ‘irrelevant’. Justice Bromberg’s reading is an entirely orthodox interpretation of these provisions. While the Commonwealth has appealed against Bromberg J’s decision in the High Court, which is yet to hand down a judgment, this point is not in issue.
But is this all just a big historical aside? At the end of the day, if there is now bipartisan support for a law that ensures compliance with Australia’s international law obligations to refugees, and guarantees that people will not be sent back to places where they will face harm, isn’t this a good thing?
Perhaps it would be, but the Clarifying International Obligations Act is not such a law. If it was, it would have simply repealed s 197C, so that Australian law no longer stated that non-refoulement obligations are ‘irrelevant’. Indeed, the Greens, who ultimately voted against the legislation, proposed this as a last-minute amendment – one which was rejected by both major parties. Instead, the law as enacted maintains s 197C, and sets up a process via which exceptions are carved out for people who have been assessed as engaging Australia’s protection obligations.
Key problems with the amendments
There are three key problems with this process.
The first is that it does not comprehensively guarantee that refugees and others in need of protection will not be returned to harm. Australia’s standards for determining whether a person engages its protection obligations, provided for in s 36 of the Migration Act, are narrower than the international law standards that govern when a person is entitled to protection. The new changes do provide protection against removal for people who would not meet the criteria for a protection visa under s 36, but who nonetheless would face a risk of harm if removed to a particular country. However, the changes also grant the Minister a power to determine that this protection against removal is no longer owed. This new power could potentially result in people being left vulnerable to refoulement. The availability of merits review, which was included by amendment, mitigates this risk somewhat, but not fully. For example, the quality of this merits review may be impaired by a new requirement that it be completed within a timeframe prescribed by regulation.
The second fundamental problem with the process that the Clarifying International Obligations Act establishes is that it provides no sustainable alternative for a person who is assessed as engaging Australia’s protection obligations, but who, for reasons I explain below, has no visa options open to them. The Migration Act requires that people in such circumstances remain in detention, potentially indefinitely. This basically amounts to replacing one human rights violation with another. Both refouling people to places where they would face harm and indefinite detention contravene fundamental human rights obligations that Australia is bound by under international law.
The third problem with the process is that it is inefficient. Where a person who is out of visa options ends up in detention because they are owed protection obligations and cannot be safely removed, s 198 of the Migration Act nonetheless requires that they be removed ‘as soon as practicable’. This requires immigration department officers to continually reassess whether the option to remove them to a safe country has arisen. If no country can be found, the person will ultimately end up detained indefinitely, but the Department cannot assume that this will be their fate – it must continue to look for an alternative. In a similar vein, the Minister is put in charge of reassessing whether the person continues to be owed protection obligations. These processes create a significant administrative burden. They are likely to decrease administrative efficiency, which, consequently, may increase the amount of time individuals spend in immigration detention. Recent statistics show that in Australia, people already spend an average of 641 days in immigration detention – far in excess of timeframes in comparator countries.
Failures of legislative process
For these reasons, 33 individuals and organisations expert in refugee and migration law and policy recently signed a statement expressing the view that, contrary to its stated intentions, the Clarifying International Obligations Act does not bring Australian migration law into line with international obligations, but in fact undermines them. Significant concerns were also expressed in reports by the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. It is a failure of process that these reports did not prompt an inquiry process, which would have provided an opportunity for dialogue and may have resulted in the legislation being brought more into line with its stated aims.
Several members of the Labor party have expressed the view that these concerns are mitigated by the fact that the changes made will only affect a narrow cohort of 21 people, who are owed protection but who have had their visas cancelled for adverse security reports or for committing serious offences that make them a danger to the Australian community.
This view is inaccurate in a number of ways. The changes will affect, on an ongoing basis, any person who is owed protection obligations and who has a visa refused or cancelled. This is not a narrow group of people. As of 31 March 2021, 775 people were in immigration detention because their visa had been cancelled.
It is also untrue that only very dangerous people who would pose a serious risk to the Australian community have their visas cancelled. The Migration Act makes visa cancellation mandatory where a person is sentenced to 12 months in prison, or multiple terms totalling 2 years. This captures a range of petty crimes, and the most common type of crime to lead to a visa cancellation is drug offending.
People may also have their visas cancelled without having committed any criminal offence – for instance if they have had ‘associations’ with others who are suspected of engaging in criminal conduct, or if they are deemed to be ‘not of good character’ on the basis of their general conduct. Since mandatory cancellation was introduced in 2014, an average of around 1,000 people per year have had visas cancelled on character grounds. A parliamentary inquiry would have provided the opportunity for this information to be provided, and considered, before this legislation was passed.
A step in the wrong direction
In sum, the Clarifying International Obligations Act entrenches a system that will function in the following manner. Large numbers of people will mandatorily lose their visas – often on account of relatively petty crimes. Others may lose visas without committing any crime. These people will face detention. Some of them will, on application, have their visa cancellations overturned. Where this does not happen, and the person is owed protection, they will sit in detention, potentially indefinitely, waiting to see whether the Department will find a place they can be sent to, or whether the Minister will determine that they are no longer owed protection.
This is not a system that clarifies Australia’s international obligations. To the contrary, it directly undermines some of the most fundamental principles of international human rights law. International law and practice in other countries provide a range of preferable alternatives, that avoid both refoulement and indefinite detention. Australia would do well to look to these examples and refine the Migration Act so that it establishes clear, fair processes that protect people’s fundamental rights, while also streamlining the substantial administrative load on immigration officers. The enactment of the Clarifying International Obligations Act is, regrettably, a step in the wrong direction.
Sangeetha Pillai is a constitutional lawyer and a Senior Research Associate at the Andrew and Renata Kaldor Centre for International Refugee Law at UNSW Faculty of Law & Justice.
Suggested citation: Sangeetha Pillai, ‘The Migration Amendment (Clarifying International Obligations for Removal) Act 2021: A case study in the importance of proper legislative process’ on AUSPUBLAW (10 June 2021) <https://auspublaw.org/2021/06/the-migration-amendment-clarifying-international-obligations-for-removal-act-2021/>