The Albanese government has a trio of migration bills before parliament to facilitate the removal of non-citizens from Australia, including paying third countries to take them and creating powers to confiscate mobile phones in detention.
Labor has been accused of trying to out-flank the former home affairs minister Peter Dutton, and even of enabling a form of “human trafficking” by the campaign group Labor for Refugees NSW.
On Monday the bills were listed to be debated on Wednesday and Guardian Australia revealed that the Coalition and Labor were closing in on a deal. On Wednesday the Coalition announced it would pass all three.
What is in this package, and what new powers would the government gain?
Migration amendment bill
On 7 November the home affairs minister, Tony Burke, introduced the migration amendment bill, which he said would support his ability to make regulations reimposing ankle bracelets and curfews on people released from immigration detention, and “strengthen” powers to remove non-citizens.
The bill does so by authorising the Australian government to pay third countries to receive non-citizens from Australia.
In theory more than 80,000 people are susceptible to removal, although home affairs officials stress that the bill does not expand that cohort and most leave voluntarily.
The most likely potential targets are about 4,452 people on bridging visas so they can make “acceptable arrangements to depart Australia”, 1,179 people in immigration or community detention, and 246 people released due to the high court’s ruling that indefinite immigration detention is unlawful. If people in that cohort refused to go to the third country, they could be redetained.
The bill contains provisions making Australia immune from civil suits in relation to removals.
The bill also expands the power of the minister to reverse a protection finding of a non-citizen on a “removal pathway”, which includes transitory persons brought to Australia from offshore detention and those whose protection visa applications were determined by the fast-track process.
What concerns have been raised?
The main concern expressed by stakeholders is that there are no legislated criteria limiting the third countries that Australia can do deals with to remove non-citizens. As a result there is no guarantee that they must be signatories to the refugee convention.
This objection was expressed by the Law Council, the Refugee Council, the Human Rights Law Centre, the United Nations high commissioner for refugees and the Australian Human Rights Commission.
In response, home affairs department officials told a hearing on Thursday that Australia was “committed to its international law obligations” and may as a matter of “practice or policy” insist that removal countries would have to be signatories to conventions on refugee rights.
Labor for Refugees NSW & ACT submitted to the inquiry that paying “third countries to accept people Australia wishes to deport … could be considered a form of people trafficking”.
The human rights committee has warned that if the third country deals come with unreasonable conditions attached then non-citizens face lengthy spells in detention.
The HRLC has warned that the latest regulations reimposing ankle bracelets and curfews could be unconstitutional for the same reason the high court struck down the first set: those conditions are punitive and can only be imposed by a court, not the minister.
The government believes it has cured this defect by setting a more objective test for imposing the conditions. The minister must be satisfied the bridging visa holder “poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence”.
Immunity from civil suits is a concern because litigation is an important accountability mechanism. For example, negligence claims helped force the Australian government to bring sick people to Australia from offshore detention.
Prohibited items bill
On Thursday Burke introduced a bill that would allow drugs and mobile phones to be confiscated from non-citizens in immigration detention.
The bill allows the minister to write regulations prohibiting items in detention if they are “satisfied that the thing is unlawful to possess in place or places in Australia or if the thing would pose a risk to the health, safety or security of a person in the facility or the order of the facility”.
The bill includes safeguards that if a device is confiscated, detainees must be given “alternative means of communication” to obtain legal advice, contact family and friends, or communicate on political matters.
Advocates have warned the bill will make it harder for people in detention to seek accountability for their treatment, including accessing legal advice at short notice.
On Monday the shadow immigration minister, Dan Tehan, told the lower house that the Coalition will support the prohibited items bill without amendment.
Deportation bill revived
In March Labor introduced a bill that would force hundreds of non-citizens to facilitate their own deportation or face 12 months’ imprisonment.
The bill requires non-citizens “to cooperate in efforts to ensure their prompt and lawful removal”, giving power to the minister to direct a non-citizen who is due to be deported “to do specified things necessary to facilitate their removal”.
The bill also creates a power for the government to ban new visa applications from countries that do not accept removals from Australia, described by the Greens as a “Trump-style travel ban”.
The Coalition and the Greens teamed up to delay the bill and send it to an inquiry. The opposition then recommended extensive amendments, including mandatory consideration of the best interests of children and diaspora communities before exercising new ministerial powers.
These amendments are not part of the deal. Instead, the Coalition won a three-year sunset on the power for the minister to ban visa applications from a country, and a requirement to give reasons for such a designation.
