The federal government is rushing legislation into parliament to make it easier to deport people from immigration detention as it prepares for a deluge of further cases challenging aspects of the nation’s immigration framework.
The bill relates to non-citizens who have exhausted their avenues for remaining in Australia. It would require them to “cooperate in efforts to ensure their prompt and legal removal,” for example requiring them to apply for a passport to return to their country of origin.
People who do not comply will be sentenced to a mandatory five-year prison term — something which is in direct conflict with the Labor Party’s official stance against mandatory sentencing for offenders.
Beyond forcing people to comply with deportation demands, the legislation also gives the immigration minister a power to “designate a country as a removal concern country … if the minister thinks it is in the national interest to do so.”
“If made, the designation would have the effect, by operation of law, that a non-citizen who is a national of a removal of concern country and who is outside Australia cannot, subject to certain exceptions, make a valid application for a visa while the designation is in force.”
In other words, the legislation would allow the government to label countries as not accepting people it is trying to deport, and block other visas to nationals of that country.
It is a thinly veiled reference to Iran, which makes a practice of refusing to accept people being deported by other countries who do not want to return.
The provisions seem to reference a case currently before the High Court brought by an Iranian man known by the pseudonym ASF17.
He is an Iranian man refusing to cooperate with authorities trying to deport him to Iran, where he will face persecution.
If the High Court was to rule in his favor, allowing him to stay in the country, there are suggestions more immigration detainees in a similar situation could also be released into the community.
Immigration Minister Andrew Giles introduced the bill to parliament a short time ago and sought its passage urgently.
“Non-citizens who have no right to be in Australia should leave voluntarily and if they will not leave voluntarily, they will co-operate with their legal removal from Australia,” he said.
“Unfortunately, examples of non-cooperation with the government’s removals efforts have been going on for far too long against the expectations of the Australian community and undermining the integrity of our migration program.”
Coalition says immigration legislation ‘rushed … chaotic … botched’
The federal opposition was incensed at being offered a sudden briefing on the bill on Tuesday morning, and the government wants it to pass both houses by Wednesday evening.
The federal government has been under sustained pressure over how it handled the release of almost 150 people from immigration detention following a landmark High Court ruling last year that indefinite detention for people with no prospect of deportation was unlawful.
“The Migration Amendment (Removals and Other Measures) Bill 2024 will further strengthen our immigration detention network by providing extra tools to deport individuals from Australia,” a government spokesperson said.
Shadow Immigration Minister Dan Tehan linked the legislation to a looming High Court case brought by a refugee under the pseudonym ASF17.
“This morning at 7:30, we were handed legislation by the government regarding the upcoming ASF17 court case,” Mr Tehan said.
“At 8:00, we were offered a 20-minute briefing on that legislation.
“Everything that this government does with regard to immigration detention is rushed, is chaotic, is botched and there is a complete and utter lack of transparency.”
Despite concerns about process, the Coalition has flagged a willingness to work with the government on the passage of the bill.
Independent senator David Pocock gave a blunt assessment on the government’s efforts to ram the legislation through Parliament.
“It stinks,” he said.
“Who’s actually running the agenda here?
“Is the opposition running the agenda from opposition, or is the government in charge?”
Speaking in parliament, Greens leader Adam Bandt said the rushed passage of the bill was “extraordinary”.
“Nothing was put forward that justifies us losing the usual rights of everyone in this parliament to consider such important legislation. On our reading of this legislation… a mum who refuses to sign a passport application for her children to be returned to Iran, where they have a fear of persecution, could be put in prison,” he said.
Foreshadowing legislation
Last week on the ABC’s RN Breakfast, cabinet minister Murray Watt appeared to foreshadow legislation was in the works to try to pre-empt the ASF17 case as he was being questioned about the potential ramifications of a High Court ruling.
“These people are simply refusing to move despite having been found to be not refugees,” he said on Tuesday.
“So our position on that is that if people have been found not to be refugees, they should return to their home country.
“And the legislation that we intend to introduce would make that crystal clear.”
A senior government source said shortly after that he had “misspoken”.
Last week, lawyers for another Iranian man sought to intervene in the ASF17 case, arguing he was in a similar situation.
The man known as Ned Kelly Emeralds, as well as by the pseudonym AZC20, is free from immigration detention.
He is also from Iran and fears persecution if he is deported back there.
Documents seen by the ABC show he is arguing his case would help the High Court form a broader view of the principles of the case.
“In developing any legal principle, the Court will have the benefit of the perspective of an interested third party whose factual circumstances bear both similarities to, and differences from, those of [ASF17],” the documents state.
