‘Ultra-marathon in incompetence’: Political chaos as Labor rams through latest High Court fix

People who refuse to return to their birth country because they fear persecution will be jailed for up to five years if they do not co-operate with moves to deport them under Labor’s accelerated plans to head off a wave of legal challenges to immigration detention.

Crossbenchers in the lower house warned that Australia would send people to their deaths under Immigration Minister Andrew Giles’ latest bill, which also denies visas to people from nations that don’t accept unwilling deportees and allows the Immigration Department to reverse protection findings after they are granted.

Opposition immigration spokesman Dan Tehan (left) and Immigration Minister Andrew Giles discuss the bill with Prime Minister Anthony Albanese (facing away from camera) on Tuesday.Credit: Alex Ellinghausen

In the third tranche of legislation sped through federal parliament in response to November’s High Court ruling that released 152 immigration detainees, Labor bowed to Coalition demands in order to pass the bill, agreeing to an 11th-hour inquiry for senators to grill top officials.

Late last year the government and opposition united to pass laws requiring former detainees to wear electronic tracking anklets and allowing judges to re-detain the worst offenders.

Weeks before another High Court hearing on April 17 to determine whether people refusing to co-operate with deportation orders should be released into the community, Giles said the bill targeted those who had “exhausted all their pathways to stay in Australia”.

“Unfortunately, examples of non-cooperation with the government’s removal efforts have been going on for too long against the expectations of the Australian community, and undermining the integrity of our migration laws,” he said.

Greens leader Adam Bandt accused the government and the Coalition of engaging in a “race to the bottom” on immigration.Credit: Alex Ellinghausen

However, Greens leader Adam Bandt led crossbench condemnation of the government, accusing Labor of a “race to the bottom” with the Coalition on immigration.

“I want to hear from the minister: how is he going to explain what happens when the first woman who is sent back to Iran under this legislation gets put in prison? What happens when the first person who has fled Russia because of fear of persecution gets sent back there and is no longer contactable?” Bandt said.

Independent MP Zoe Daniel, a former foreign correspondent, said “if we make a mistake here, people may be sent back to countries and murdered”, while independent Helen Haines said Australians should be worried about the state of our democracy.

Crossbenchers also said the government was unable to justify the urgency of the bill, after leader of the house Tony Burke guillotined debate to ensure the legislation was dealt with “in the national interest”.

The Senate will vote on the bill on Wednesday after a hastily organised committee hearing that will give senators the chance to question Home Affairs officials.

Next month’s case concerns the plight of a bisexual Iranian man, given the pseudonym ASF17, who has frustrated efforts to be deported. He is one of several Iranian men the government cannot return because Iran refuses to accept citizens without their consent.

Home Affairs officials grilled in the Senate on Tuesday night said the department told the government a month ago more legislation would be needed to address a gap in the migration system, and that the government instructed them to draft a bill on March 5, more than three weeks ago.

Home Affairs general counsel Clare Sharp told the committee hearing the upcoming ASF17 challenge wasn’t driving the legislation, but said it dealt with the same cohort of people affected by the outcome of that case. She refused to comment on whether the bill changed the government’s prospects of winning the case.

However, Home Affairs secretary Stephanie Foster said: “Yes, if the bill were passed and the case were unsuccessful, it would give us an additional tool to deal with people protected by that.”

The bill would give the government the power to designate a nation as a “removal concern country” that would empower immigration officials to deny visa applications from citizens of those nations if they did not accept involuntary returns. Foster said this provision would give the government the leverage needed to deport people to those countries.

Coalition senator Michaelia Cash asked whether barring visa applications from certain countries could encourage people to instead journey to Australia with the help of people smugglers. The bureaucrats said Operation Sovereign Borders officials had been consulted.

The officials said the new laws would affect between 150 to 200 people in detention.

The Human Rights Law Centre said this gave Giles “god-like” powers, as he only had to consult the prime minister and foreign minister before blacklisting a country.

In the year to February, more than 26,000 people arrived in Australia from Iran. Iraq, Russia, and South Sudan are other countries that don’t accept involuntary returns.

The bill says that if a person has a genuine fear of harm or persecution if they are deported, that is not a reasonable excuse for not co-operating with efforts to remove them. Foster said people owed protection could still be deported to a third country.

This comes as lawyers bring cases against the government over the continued detention of people who are owed protection, alleging they cannot be lawfully locked up if they cannot be practically deported.

Refugee Legal director David Manne said the government was desperately trying to circumvent the ruling of the High Court. “It appears it is also trying to head off legal challenges in relation to people’s liberty and safety in this country,” he said.

Opposition immigration spokesman Dan Tehan said on Tuesday morning that his office was offered a 20-minute briefing at 8am over the legislation.

“What a sham this whole process is. It’s an ultra-marathon in incompetence,” he said.

The government is bracing for years of legal upheaval created by the precedent in that case, referred to as NZYQ after the pseudonym given to the man who appealed to the High Court. The ruling that indefinite detention was unlawful created a political headache for the government after the release of people who had served jail sentences for crimes like murder, rape and people smuggling.

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