Three Labor MPs raise the alarm on migration law
Three Labor senators are warning about wide-ranging powers that could be handed to the embattled Immigration Minister.
Three Labor senators have joined with Liberal and Greens MPs to unveil an extensive list of concerns with the Albanese government’s emergency migration laws, warning Immigration Minister Andrew Giles would be handed powers that are too wide-ranging and without appropriate parliamentary oversight.
A nonpartisan committee chaired by Liberal senator Dean Smith and deputy chaired by Labor senator Raff Ciccone cautioned against the use of mandatory minimum sentences that “impede judicial discretion” and found Mr Giles would receive “broad and unfettered discretion” to ban citizens from other countries from applying for visas to Australia.
The committee, which quietly tabled its report on the laws last Wednesday less than two days after being able to look at the government’s changes to the Migration Act, also criticised the speed with which Labor attempted to pass the legislation, saying it limited scrutiny and debate.
“There has recently been a number of significant changes to the legislative framework for migration, with each such case being rapidly proposed to and passed by the parliament outside of the normal processes,” the Senate’s scrutiny of bills committee says in its latest digest. “Such rapid changes prevent certainty in the law, which is of concern noting that the changes in this bill … may have a significant impact on the rights and liberties of the individuals affected.”
The committee recommended Mr Giles’ discretionary powers should be contained in primary legislation and subjected to “full parliamentary consideration”, rather than a tick-and-flick exercise through regulation.
If the legislation passes, Mr Giles must consult with Anthony Albanese and Foreign Minister Penny Wong before black-listing a country that doesn’t accept the return of its citizens.
Other Labor senators on the committee include Jess Walsh and Tony Sheldon. Greens senator Nick McKim and Liberal senator Paul Scarr are also members.
Senators Ciccone, Sheldon and Walsh were contacted for comment, as was Mr Giles. A separate Senate inquiry looking into the government’s Migration Amendment (Removal and other Measures) Bill could report one to two weeks earlier than scheduled on May 7 if Labor decides to recall parliament to deal with the legislation in a bid to pre-empt any ruling on a looming High Court case.
An Iranian known as ASF17, who is refusing to co-operate with efforts to remove him from immigration detention and send him back to his home country amid claims he will be persecuted because of his sexuality, will have his case heard on April 17.
The High Court took just 20 days to deliver its initial judgment on the landmark NZYQ case, which overturned indefinite detention and sparked a series of legal challenges and emergency laws to try to keep the community safe from 152 criminal detainees – including murderers, rapists and pedophiles – the government was forced to release.
If the High Court followed the same short timeline in the ASF17 matter, its decision could be published before the Senate committee has delivered its recommendations to government on legislation that Home Affairs Minister Clare O’Neil conceded was linked to the case.
More than 100 detainees who the government wants to deport could be released if ASF17 wins.
The Australian understands a majority of the Labor-chaired committee could agree to accelerate the five-week inquiry if the government convinced the opposition and others there was an urgent need to do so.
In the scrutiny of bills committee report published last week, the senators outlined concerns Mr Giles may blacklist multiple countries under a single instrument and could expand the groups of people who may be forced to follow government directions to leave Australia.
The committee recommended the removal directions should again be in primary legislation that can be overseen and amended by parliament, not regulation that is signed off by the executive.
The government failed to rush through changes to the Migration Act last week that would have enabled Mr Giles to designate a nation that refused to accept the return of its citizens a “removal concern country”, preventing most nationals in that country from making visa applications to come to Australia.
The laws would also see non-citizens who had exhausted all their legal options to remain in Australia face a mandatory minimum jail sentence of one year – and a maximum jail sentence of five years – if they didn’t follow government orders to return home.
“Given the significance of these measures on individual rights and liberties, the committee considers that the legislation should set out an appropriate minimum time period, such as, for example, 60 days, in which to allow the person to take steps to comply (with government directions to leave the country) and to seek legal advice,” the committee’s report states.
“While the committee acknowledges that the penalty and minimum sentence (of one year in jail) are intended to reflect the seriousness of the offence and act as deterrents, the committee reiterates its longstanding view that the use of mandatory minimum sentences impedes judicial discretion.”
The senators also took issue with the proposed expansion of Mr Giles’s powers to overturn protection decisions. If, for example, it was found a non-citizen on a bridging removal visa was no longer owed protection, that person could be forced to leave Australia.
“This is clearly a significant and rights-affecting matter and it is not clear to the committee why such a power is necessary,” the committee report states.
Senator Scarr said he was being contacted by diaspora communities that feared they would be impacted by the bill.
“They want to know what it will mean for them if Iran or Zimbabwe or South Sudan or Iraq is listed as a removal concern country. That just underlines the importance of the Coalition’s policy that this bill needed to be subject to appropriate scrutiny,” he said.
“The voices of these communities need to be heard and their questions answered as part of a scrutiny process.”
ACT independent senator David Pocock said after two-hour Senate inquiry into the legislation last Tuesday it was unclear why the legislation was so urgent.
“It seemed that all senators found it frustrating as there were few clear answers about what problem the legislation is trying to fix and if it will actually work,” he said.
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