Australia will pay countries to take our ‘undeportables’ in latest High Court fix

Labor will pay countries to accept convicted criminals it has been unable to deport and revive its travel ban on nations that don’t take back citizens against their will, under a package of laws the Albanese government wants to rush through parliament in a last-minute deal with the Coalition.

Immigration Minister Tony Burke has been holding backroom talks with the opposition to strike a deal on an issue that has plagued his government since last year’s High Court ruling freed more than 200 immigration detainees into the community: what to do with people Australia doesn’t want but who can’t be deported.

Immigration Minister Tony Burke during question time in November.Credit: Dominic Lorrimer

The Albanese government has merged three bills to form an immigration package that allows it to put non-citizens back into detention once another country agrees to take them, and jail people for up to five years if they do not co-operate with moves to deport them.

But Labor’s agenda has alarmed human rights groups, who described it as draconian and discriminatory, while lawyers warn the planned laws will be hit with flurry of court challenges. Greens senator David Shoebridge said it was the “most extreme migration legislation since the White Australia policy”.

The first part of the package allows Australia to pay countries to accept non-citizens who have refused deportation to their home country, and reinstates an ankle bracelet and curfew monitoring regime for former detainees that was struck down by the High Court earlier this month.

The second gives authorities power to confiscate mobile phones and other items from people in immigration detention, which is similar to a law Labor voted down under the previous Coalition government in 2020.

The third revives a bill that was shelved earlier this year and bans entire nationalities from visiting Australia if their governments don’t accept citizens being returned against their will, targeting countries such as Iran, Iraq, Russia and South Sudan.

That bill, which the Coalition and Greens rejected in March because of humanitarian concerns and hasty drafting, also allows people who don’t co-operate with moves to deport them to be jailed for up to five years.

A year after the government last scrambled to rush tougher detention laws through parliament, Labor has again been negotiating with the Coalition, which has pushed for the tougher migration measures now scheduled for debate in the Senate on Wednesday.

Neither Burke nor the Coalition would speak publicly on Tuesday about the package as Labor seeks to avoid a repeat of the political firestorm that engulfed the government and led to two ministers being turfed from the Home Affairs portfolio earlier this year.

Labor has struggled to navigate the consequences of last year’s High Court’s NZYQ decision, which found indefinite immigration detention was unlawful because it amounted to the government usurping the court’s role in issuing punishments. The Coalition hammered the government after 224 foreigners, many of whom have serious criminal convictions but had finished their prison sentences, were released from immigration detention.

Labor responded by imposing curfews and electronic monitoring on that cohort, but the High Court this month ruled that regime was also unconstitutional for the same reason.

A Senate inquiry last week heard that Burke’s new deportation laws could apply to far more people than the cohort affected by the High Court’s decision. Home Affairs officials gave no details about which countries Australia would send them to, nor how much they would be paid.

David Manne, whose law firm Refugee Legal led this month’s successful High Court challenge, described the laws as “brutal measures” that would endanger people’s rights and lives.

“Where people’s most basic freedoms are so seriously threatened again – by seeking to circumvent the High Court’s clear ruling that these conditions are punishment which is unconstitutional – we simply cannot rule out further legal challenges,” he said.

Sanmati Verma, legal director of the Human Rights Law Centre, said the laws would affect thousands of people. The Albanese government, she said, began its term with smiling photos of a Tamil family in Queensland it saved from deportation.

“It will end its term by passing laws that would see people like Priya and Nades jailed and permanently separated from their children,” Verma said.

The Refugee Council of Australia also hit out at Labor’s plans to give authorities power to confiscate phones, SIM cards and computers that advocates say are important for detainees’ wellbeing as well as their ability to record abuse in detention.

“Mobile phones are a lifeline for people in detention,” chief executive Paul Power said. “They are essential in connecting people with family, friends and lawyers. It is a means of keeping up with the news, reading novels, playing games, writing and listening to music. These all help with overcoming isolation in harsh detention conditions.”

Cut through the noise of federal politics with news, views and expert analysis. Subscribers can sign up to our weekly Inside Politics newsletter.