Immigration removal legislation: put away the sledgehammer

May 27, 2024
Immigration Law Litigation. Deportation Paperwork Image:iStock/AndreyPopov

The High Court decision in the ASF17 case removed the apparent driver for the government’s sledgehammer immigration removal legislation. There is little evidence that the legislation would work as intended. A sledgehammer is not much use for a problem which is more akin to undoing a couple of tight screws. The government should drop the legislation and completely redevelop its immigration compliance and removal strategy.

One thing that got lost in the noise of the annual Budget drama was the fate of the government’s harsh immigration removal legislation.

The Bill aimed to solve the long-standing twin problems of migrants with no further right to remain in Australia who refuse to cooperate in their removal and countries which refuse to accept return of their citizens who don’t want to return. The deeper motivation appeared to be that an imminent High Court decision (case ASF17) might mean that the government could no longer continue to “deter” people who refused to cooperate in their return by keeping them in detention and therefore would face further intense wedging by the Opposition, and sections of the media, if they had to be released.

But the High Court decision, which has since been handed down, went the government’s way. Essentially, the High Court found in this case that continued detention of a person who refused to cooperate with their removal was reasonable because removal was practically possible if the person changed their mind.

So, what has happened to the legislation?

The legislation had been referred to the Senate Legal and Constitutional Affairs Committee for examination. Its report came out a week before the Budget. The committee received 120 submissions overwhelmingly opposing the legislation on numerous grounds. Despite this, the committee report followed the usual party lines. The majority government members recommended that the Bill be passed unchanged, the Coalition members agreed with the policy intent of the Bill, but with a swath of changes at the margin, and the Greens and Senator Pocock opposed its passage.

This leaves the government with the green light to go ahead with an incredibly contentious piece of legislation despite the main driver to do so no longer being in existence. The legislation now appears to be in limbo.

To recap, the key elements of the Migration Amendment (Removal and Other Measures) Bill 2024 create a duty for those people who no longer have a right to remain in Australia to cooperate with their removal (they may or may not be in immigration detention). If they don’t cooperate, by refusing to do such things as seeing their embassy representatives or filling in the relevant forms, the Minister has a discretion to issue a direction to them to do certain things. If they don’t comply with the order, it is a criminal offence with a penalty of up to 5 years imprisonment and a mandatory one-year of imprisonment.

The second major element of the Bill is to give the Minister a discretion to designate a country that does not cooperate in the unwilling return of its own citizens as a “removal concern country” and to deny visas to citizens of that country, subject to a complex series of exceptions.

There is one huge gap in the discussion about this Bill. Neither the government nor the supporters of the Bill in the Senate Committee have specifically said they think it would work as intended. That’s because it won’t.

If the legislation is passed, it will likely create a new class of criminality and put more people in gaol – without achieving more removals. People who don’t cooperate in their removal do this for a whole variety of reasons which are not always bloody-mindedness. The legislation doesn’t take account of the underlying reasons which include deep subjective fear, lack of resources and nothing to return home to, close family connections in Australia, mental illness and in some cases inability to make a rational decision. There are more effective ways of tackling these obstacles. Moving from detention to gaol won’t change their mind.

In relation to using the sledgehammer of visa sanctions against visa applicants from countries which will not accept involuntary return of their own citizens, there is also no evidence that it will be effective.

In its appearance before the Senate Committee, the Department of Home Affairs helpfully offered the example that the United States had managed to change the behaviour of the governments of Guyana and Guinea in relation to returns by denying visas to their citizens. Very comforting indeed. But does anyone really believe that Australia withholding visas from, say, Iranians, would change the behaviour of the Iranian government in relation to involuntary returns. I suspect the Iranian government has a lot of other more important priorities on its mind now. Again, alternative approaches that worked in the past should be reconsidered.

The Department of Home Affairs also offered the reassuring thought that the powers would only be used as a last resort. Quite unrealistic. The last 20 years of introduction of extraordinary powers for immigration ministers has demonstrated that their use quickly becomes a matter of routine until they explode as a time bomb under some subsequent administration.

So, there is a piece of legislation for which the underlying feared legal imperative no longer exists and no one is prepared to say the new law would work. Nevertheless, it is widely recognised that it would have devastating consequences on individuals and families who don’t cooperate in their removal and would punish entirely innocent visa applicants from countries whose governments are non-cooperative without likely changing the behaviour of those countries.

In the circumstances, the government would be wise to quietly drop it. Instead, they should focus on developing a new and updated immigration compliance strategy.

The Coalition government and the Australian Border Force bizarrely walked away from immigration compliance in their nearly 10 years in office, leading a vast catch-up caseload. The government has put considerable resources into reviving compliance. The smart move would be to learn from the many reviews of immigration detention compliance over the last 20 years and to develop an up-to-date strategy. In relation to non-cooperation in removal by individuals, psychological assessments, counselling and reintegration packages are likely to be more effective than gaoling people. Similarly, negotiated arrangements with countries of origin are likely to achieve more involuntary returns than threats. These solutions are akin to carefully undoing a tight screw. A sledgehammer doesn’t do the job.

The focus should also expand beyond the small numbers of people in detention to the substantial numbers of people that the government will want to leave Australia when faster processing initiatives lead to growing numbers of refusals of protection and other visa applications as well as refusals of appeals to the Administrative Review Tribunal.

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