Hundreds of immigration detainees and unlawful non-citizens are being threatened with a minimum of one year in prison if they refuse to cooperate with efforts to deport them, under an urgent Labor bill to be introduced on Tuesday.
The bill requires non-citizens “to cooperate in efforts to ensure their prompt and lawful removal”, creating criminal penalties that could apply to a class of asylum seekers that includes two plaintiffs before the high court challenging the legality of the detention of people who refuse to cooperate with deportation.
On Tuesday the immigration minister, Andrew Giles, introduced the Migration Amendment (removals and other measures) bill, which gives him the power to direct a non-citizen who is due to be deported “to do specified things necessary to facilitate their removal”.
Failure to comply with a direction without a reasonable excuse will be a criminal offence carrying a mandatory minimum of 12 months in prison, a maximum of five years, a $93,900 fine, or both imprisonment and a fine.
The government moved to limit debate to pass the bill in the House of Representatives by question time on Tuesday, a move blasted by the Greens and crossbench.
Giles told the House of Representatives those in scope for orders to facilitate deportation include “unlawful non citizens, people without any visa including those in immigration detention, bridging removal pending visa holders”, and those who hold a general bridging visa to make “acceptable arrangements to depart Australia”.
Earlier, briefings to the opposition, Greens, and crossbench indicated the bill will affect hundreds of people including 130 in immigration detention, and more in the community, although the crossbench was told “less than 1,000” in total.
ASF17, a man who says he fears for his life if he is deported to Iran because he is bisexual, has sued the commonwealth in a case to be heard in April that could result in more than 170 people being released from detention.
ASF17 has refused to meet Iranian authorities to get travel documents, which the federal court has ruled means the commonwealth is not obliged to release him.
The bill requires “non-citizens who are on a removal pathway and have exhausted all avenues to remain in Australia to cooperate in efforts to ensure their prompt and lawful removal”.
“The amendments in the bill are necessary to address circumstances where non-citizens who have no valid reason to remain in Australia and who have not left voluntarily as expected, are not cooperating with appropriate and lawful efforts to remove them,” the bill’s explanatory memorandum says.
The bill contains some safeguards, including that the minister must not give a direction if the non-citizen has applied for a protection visa.
The non-citizen “cannot be directed to interact with or be removed to a country in respect of which the non-citizen has been found to engage Australia’s protection obligations”, the explanatory memorandum says.
“However, they may otherwise be given a direction to do certain things necessary to facilitate their removal to a safe third country.”
The bill also creates a power for the government to designate another country as a “removal concern country”, which will impose a bar on new visa applications from non-citizens outside Australia who are nationals of a country that does not accept removals from Australia.
The power could affect applicants hoping to leave countries including Russia, Iran, Iraq and South Sudan. The memorandum said this was “an appropriate and proportionate measure” to “slow down that entry pipeline into Australia and reduce growth in the cohort of potentially intractable removals over time”.
A government spokesperson said the bill “will further strengthen our immigration detention network by providing extra tools to deport individuals from Australia”.
In November the high court ruled that immigration detention is unlawful where there is “no real prospect” of it becoming practical to deport the person “in the reasonably foreseeable future”.
In the ASF17 high court case the commonwealth argues it has the right to continue detaining those who refuse to cooperate with deportation.
ASF17 and another man, AZC20, who has applied to intervene in the case, both argue there is no obligation to cooperate.
The Greens immigration spokesperson, David Shoebridge, said: “This is part of an ongoing cruelty agenda from Labor, in this case literally trying to outflank the Coalition to the right by coming up with new and novel ways to be cruel particularly to refugees and asylum seekers.”
The opposition’s immigration spokesperson, Dan Tehan, accused the government of a “chaotic” approach to immigration detention that “lacks transparency”.
The opposition wants an urgent inquiry hearing on Tuesday evening to probe the bill and check for “unintended consequences”, he said.
Earlier this month Guardian Australia revealed that more than 170 people might have to be freed if the government loses this case, including:
More than 110 “involuntary individuals”, whose home countries will not issue a travel document or facilitate removal.
More than 40 who could fall into scope who have not yet lodged protection visa applications.
More than 20 who have asked to be deported – which enlivens a statutory obligation for them to be removed – but their cases have not been referred to Australian Border Force.
