The Law Council of Australia has urged the Parliament not to pass a package of Migration Bills and to ensure they receive the scrutiny they deserve.
"We have strong reservations with each of the three Bills scheduled for debate today and which reports have suggested the Government and Opposition may have reached a deal to pass," Law Council of Australia President, Mr Greg McIntyre SC said.
The package of Bills consists of the Migration Amendment Bill 2024, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024 and the Migration (Removal and Other Measures) Bill 2024.
The first of these bills has been subject to the most scant and unsatisfactory Parliamentary inquiry process but has nevertheless attracted significant concern from the Scrutiny of Bills Committee and Parliamentary Joint Committee on Human Rights. The second Bill has been subject to no parliamentary committee referral at all, which is difficult to contemplate given that its previous iteration, in 2020, deeply alarmed many civil society stakeholders. The Law Council retains its view that the third Bill is highly disproportionate and punitive in its effect on predominantly vulnerable individuals.
"We think there are inherent risks with each of these Bills," Mr McIntyre said. "The implications of this package of legislation ranges from making it more difficult for someone to contact family and friends or obtain legal advice, through to trampling on a person's human rights—such as the rights to life, liberty and security of person, the right to freedom from arbitrary detention, the right to humane treatment in detention, the right to respect for family unity, the right to a fair trial, and the right to freedom of opinion and expression.
"In terms of the Migration Amendment Bill and the Removal Bill we remain concerned that members of our community, including vulnerable members of our community, may face forced removal to another country without the safeguards and protections we are, and should be, obligated to ensure. This may place them at risk of significant harm.
"The Removal Bill also includes mandatory minimum sentences, which we strongly oppose because this overrides judicial independence and discretion—fundamental principles of Australian criminal law—and undermines the ability of the courts to ensure that the punishment fits the crime in the individual circumstances.
"While the Prohibiting Items Bill has some welcome improvements since its last iteration in 2020, we remain unconvinced of its necessity. Across Australia, the orthodox response to activity which may constitute a criminal offence is for the police to use their well-established investigative powers, gather sufficient evidence and ensure that individuals can be charged and held to account before a court of law. It is not the Australian way to pre-emptively confiscate a person's principal means of communicating – such as phones and laptops – with family, friends and other necessary support, including legal support.
"To date, and in their current form, these Bills are unjustified and their potential outcomes disproportionate to the problems they are supposedly attempting to address. "If those who would vote in support of these Bills are so sure they are needed and appropriate, they have nothing to fear from providing the Australian public with adequate time to consider and provide feedback on them.
"We strongly recommend these Bills not be passed today and instead the Parliament provide an opportunity for acceptable and effective consultation to take place, and options for less restrictive and punitive solutions to any issues identified and properly debated."
