The Law Council of Australia has today urged the Australian Parliament not to pass the Migration Amendment (Removal and Other Measures Bill) 2024.
"We have previously expressed our concerns regarding this Bill and welcome the scrutiny being provided by the Senate Standing Committee on Legal and Constitutional Affairs' inquiry," Law Council of Australia President, Mr Greg McIntyre SC said.
Appearing before the Committee today, the Law Council highlighted a series of issues with the legislation and recommended that it not be passed.
"We appreciate the importance of a well-functioning migration program. However, this is not the way to achieve that legitimate objective. The Bill is highly disproportionate and punitive in its effect on predominantly vulnerable individuals. No evidence of any serious or widespread problem to justify this response has been produced by its proponents," Mr McIntyre said.
"One of the most significant problems we have identified is that aspects of the Bill do not comply with Australia's obligations under international law. We consider that the migration system will lack integrity if it is not based on Australia's international obligations.
"Not only would people face deportation, even where they have genuine fears for their safety, but under this Bill there is a very real possibility that the process of issuing a direction itself creates a situation of a real risk of harm to individuals if removed to that country – even where such a risk may not have previously existed.
"The Bill's supporting materials do not appear to grapple with the possibility that it may lead to situations in which Australia breaches its own non-refoulement obligations under international law. This underlines its fundamentally flawed nature.
"Once again, we raised our objection to minimum mandatory sentences. Under this legislation, non-compliance with directions given is an offence, with a maximum penalty of five years imprisonment and a mandatory minimum sentence of at least 12 months. These are vastly disproportionate responses to a failure to comply with directions – which may involve minor conduct which is not harmful or dangerous."
The Law Council also told the Committee it believes the safeguards in the Bill are inadequate. For example, while the Minister must not give a removal pathway direction to a child under 18, he or she may direct the parent of a child to do something on the child's behalf. There is no requirement to have regard to the best interests of the child as a primary consideration. This places parents in an invidious position, having to choose between facilitating their child's removal overseas despite fears of harm or persecution, or the parent being subject to a mandatory sentence and thereby separating the family.
The Law Council is also concerned by the Bill's conferral on the Minister of a personal and discretionary power to designate 'removal concern countries' in the national interest. It will have a punitive effect on nationals from those countries who are seeking to apply for an Australian visa from offshore and would otherwise meet the visa criteria.
"If enacted, this discriminatory measure would represent a disturbing departure from Australia's longstanding system of merit-based consideration of every individual visa application," Mr McIntyre said.
"This Bill should not be passed. Instead, the Government should consult the Australian community, outlining the relevant issues, the scale of any problem, cohorts affected, possible options and potential implications of each, by reference to Australia's international law obligations. This would provide a basis for pursuing more moderate reforms."
