Sledgehammer immigration removal legislation

Apr 3, 2024
Immigration law book.

The government’s new legislation represents a sledgehammer approach to twin immigration removal problems – non-cooperation by people who don’t want to be removed from Australia on the one hand and non-cooperation by their country of citizenship on the other. These problems are quite tricky, but they are not new. Alternative approaches are needed.

In the past, the government could continue to keep those who don’t cooperate in their removal in immigration detention (technically forever). Now, it appears that fear of losing a case before the High Court (ASF17) concerning an Iranian man who won’t cooperate has prompted the government to provide a gaol alternative to cover the risk that the decision means that he, and others like him, might have to be released into the community.

The Migration Amendment (Removal and Other Measures) Bill 2024 creates 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, the Minister has a discretion to issue a direction to them to do certain things. If they don’t comply 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.

People who don’t cooperate with their removal from Australia

Most people who are unlawful in the country leave of their own accord or with the encouragement of government compliance action (at least until the Home Affairs Department and Australian Border Force under the previous government effectively abolished the compliance function).

Some people, including those in detention, won’t cooperate for a whole variety of deep seated reasons – not just bloody-mindedness. These include strong subjective fear of returning home (even if those fears can’t be objectively justified), no resources and nothing to return home to, connections in Australia, mental illness or, in some cases, inability to make a rational decision after years of incarceration in the Australian detention system. The government doesn’t say anything about these underlying human factors.

Will the sledgehammer threat of transferring non-cooperators from detention into jail actually make any difference? In most cases I doubt it; and the government doesn’t specifically say that it will either. But it could put more people in gaol which will be damaging to those individuals and cost the taxpayer a lot more money. The mandatory minimum one year gaol sentence is inflexible and denies the judiciary the ability to take an independent view of the individual circumstances of each case.

Then there are the complexities of families. Minor children cannot be forced to sign removal documents, but will their parents go to gaol, with a mandatory sentence of at least one year, for failing to do it on their behalf?

The problem of non-cooperation in removal is an intractable one, but, in the past, counselling and incentives (such as reintegration assistance) have played an important part in getting more difficult cases of unwilling individuals to go home. The immigration removal system does not have to win 100% of the time to remain credible and effective.

Countries that don’t cooperate with forced return of their citizens

The problem of some countries not accepting forced return of their citizens who do not wish to go home is not new either. Nor is it something that is only experienced by Australia. The approach of those countries is simply that they really don’t want to be bothered by having large numbers of people returning who don’t want to be there. They are usually concerned by big numbers of their nationals in Europe rather than anything happening in Australia. In the past, Iran has taken this unhelpful approach and so has Afghanistan.

Refusing to accept return of your own citizens (even against their will) is contrary to accepted international principles and it is extremely frustrating for countries like Australia trying to implement immigration law. But let’s not forget that during the Covid 19 pandemic Australia actually refused to accept its own citizens, who desperately wanted to come home.

In the past, the Australian government successfully achieved reasonable solutions through negotiation. Agreements on non-voluntary return were negotiated with both Iran and Afghanistan and used.

This time the government is opting for the sledgehammer approach. Will the sledgehammer of denying visas to people from those countries work? The government hasn’t told us that they think it will. I suspect the governments of the affected countries will regard it as a very tiny and amusing plastic hammer. They won’t do things for Australia that might represent the thin end of the wedge in their dealings with other countries where they have a lot more at stake. They probably won’t care too much about their own affected citizens.

Unfortunately, the group punishment penalty will only fall on those innocently wishing to come to Australia. Unintended consequences, if these powers are used, will be barring people that we want to allow to come here; for example, businesspeople conducting trade with Australia, academics coming to Australian institutions or just the relatives of Australian citizens. It also adds to the complexity of the visa system (which we keep saying, with diminishing credibility, we are simplifying) because decision-makers would have to pick their way through a complex series of exceptions.

Reassurance that such powers will only be used in exceptional cases is utterly worthless. The last few decades have shown that when so-called extraordinary powers are introduced into the immigration system, they soon become used as a matter of routine. A Minister like Andrew Giles may be judicious in the use of the powers, but that certainly doesn’t mean that the next one will be.

Australia’s immigration history over the last 25 years is littered with clever “initiatives” aimed at making things tougher for people in Australia unlawfully. Apart from the harshness dealt out to the people affected, they usually leave a minefield which explodes under another government years later. The Keating government’s introduction of mandatory detention exploded under the Howard government. Peter Dutton’s harsh regime of mandatory detention/removal of non-citizens convicted of crimes in Australia exploded under the Albanese government.

If the current government’s approach is legislated by Parliament, the only question will be who, apart from the unlucky people subject to it, will wear the unintended consequences and downstream explosion? It probably won’t be the person whose idea it was in the first place.

More broadly, this will continue the strategically unsound trend of “criminalising” certain behaviours in relation to immigration and visas that have never been a criminal offence before. The government’s creation of a bespoke and expensive parallel system of criminal justice for the limited number of non-citizen detainees released from immigration detention because of the High Court’s decision is an example of this.

Understandably, the government is fearful of being politically wedged by a rabid Opposition, who probably regret that they didn’t think of this themselves. Mainstream media beating up an unwarranted “community protection” fear about a very small number of people who have served their sentences doesn’t help with rational policymaking. Politicisation of immigration has driven bad policy for two decades now. The practice of governments is now that when they get into a political hole, they just instinctively dig a deeper one.

The policy behind this legislation needs to be reconsidered and other options explored.

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