02 August 2021
Parliament must reject a spate of Bills that will introduce sweeping powers and deny basic rights.
Legal experts have released a unified statement (attached below) calling for three migration Bills currently before Parliament to be rejected in their entirety due to the threat they pose to the rule of law, basic human rights and transparency.
The suite of Bills targets refugees, people seeking asylum and other migrants who are in immigration detention or facing visa cancellation or refusal. If passed, these Bills would cause more people to be held in indefinite detention, potentially for the rest of their lives, or to be deported to countries where they face serious harm or have little connection to, with many also facing permanent separation from their Australian spouses and children.
Elements of the Bills give sweeping powers to the Minister for Home Affairs and seriously compromise the ability of people to get a fair hearing, creating dangerous unaccountability which offend our traditions of democratic governance subject to the rule of law.
The Bills in question are:
- The Migration Amendment (Prohibiting Items in Immigration Detention) Bill 2020 – which will, if passed, allow the Minister to prevent refugees and people seeking asylum from having everyday items, such as mobile phones, while in detention. This is a clear attempt to hide the suffering of people in detention, but in doing so also prevents their access to independent health and legal services as well as family and friends.
- The Migration Amendment (Strengthening the Character Test) Bill 2019 – which will introduce arbitrary and unreasonably low thresholds for the Minster to revoke or refuse visas for people based on the maximum possible sentence they could receive, rather than the sentence they actually received. This change would catch a much wider group of people who may have received only very light sentences or committed only minor offences. This Bill could see refugees and people seeking asylum who have been in Australia for years forcibly sent back to their country of origin to face persecution or serious harm when they fail this further widened, discretionary “character” test.
- Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 – which will allow the Minister to use secret information to revoke the visas of refugees and people seeking asylum. This Bill not only prevents a person from knowing what information is being used against them, but also prevents them from even knowing if secret information is being used. It also prevents the Administrative Appeals Tribunal (AAT) from having access to the information unless the Minister provides permission, even when the information is highly relevant to deciding people’s cases, preventing the AAT from performing its role in conducting merits reviews of cases.
There is great concern that these Bills could at any moment be rushed through Parliament without proper scrutiny. This was the case in May this year with a Bill that entrenches the ability of the government to indefinitely and arbitrarily detain refugees whose visas have been cancelled. The Migration Amendment (Clarification of International Obligations for Removal) was pushed through the Senate with debate gagged and inadequate analysis of its radically harmful implications.
The Bills would deny justice as well as negatively impact the mental and physical health of refugees and people seeking asylum, who already suffer under a punitive and arbitrary system.
Carolyn Graydon, Principal Solicitor and Manager of the Human Rights Law Program at the Asylum Seeker Resource Centre said: “Legal experts are united in their call that all of these Bills should be rejected in their entirety. They collectively deny fundamental rights, purposefully block scrutiny of government actions and represent a remarkable incursion of the rule of law.”
David Manne, Executive Director and Principal Solicitor Refugee Legal said: “This package of bills seeks to impose further draconian restrictions on the basic rights of refugees to get a fair go before the law. The proposed laws betray fundamental safeguards under the rule of law and inevitably leads to widespread violations of rights and severe harm to many vulnerable people across the country.”
Sanmati Verma, Deputy Chair of the Visa Cancellations Working Group said: “Together, these Bills are intended to drastically increase the power of the Minister for Home Affairs and her Department while limiting the ability for those powers to be challenged. They are a power grab by the government, and must be robustly rejected.”
Lucy Geddes, Project Lead for the Asylum Seeker Health Rights Project at the Public Interest Advocacy Centre said: “The proposed powers to prohibit mobile phones in immigration detention and to enforce bans with invasive search and seizure powers are not supported by evidence. They are likely to have a significant, negative impact on the mental health and wellbeing of people in immigration detention and their ability to access independent medical and legal advice and other critical supports.”
02 August 2021
Call for rejection of thee alarmingly harmful migration Bills
The following is a statement signed by legal experts and organisations.
Three Bills of significant concern regarding migration are currently before the Parliament: the Migration Amendment (Prohibiting Items in Immigration Detention) Bill 2020, the Migration Amendment (Strengthening the Character Test) Bill 2019, and the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.
Legal experts are united in the call that each Bill should be rejected: together, they represent remarkable incursions of the rule of law, they remove fundamental rights, they purposefully block scrutiny of government actions including conditions in Australia’s notorious immigration detention facilities, and they are capable of considerable misuse. These Bills will cause devastation to individuals and families including indefinite detention, permanent separation of families (including children from parents), and deportation to life-threatening conditions. These Bills exacerbate the dysfunction of Australia’s detention and visa cancellation frameworks.
Alarmingly, the Bills have been placed before the Senate with insufficient justification and with no discernible benefit. Each purports to address an issue that either does not exist or is already addressed by existing powers. The lack of clarity in the Bills raises serious concerns. The Bills do not contain adequate protections for individuals; there is simply nothing to prevent misuse. The worrying shift toward government secrecy represented by these Bills means that Australians will likely never know if these exceptional powers are being misused or even abused.
The Bills set troubling precedents for the erosion of the rule of law and for the removal of fundamental rights, including to liberty, privacy, freedom of speech, access to justice and freedom from interference with family. They fail to protect vulnerable individuals, including minors, people with mental illness, and refugees and people seeking asylum. In so doing, the Bills offend community standards. It is unacceptable that the basic presumptions and protections of our legal system be reversed in dealing with migrants and refugees. All people should be treated fairly: that is fundamental to Australian society.
The Bills will damage the integrity of decision-making and lead to outcomes out of step with community standards. The Bills will also increase the strain on Australia’s administrative system, and particularly its overstretched courts, at the expense of the taxpayer. Exacerbating all of these issues, the Bills operate in an area where there is extremely limited access to legal representation due to inadequate funding, further limiting oversight and access to justice.
- Migration Amendment (Prohibiting Items in Immigration Detention) Bill 2020: This Bill would give the Minister sweeping powers to ban everyday items in detention centres, including mobile phones. It would also vastly expand the powers of private security contractors to conduct searches and seize people’s property. In failing to define key terms, this Bill stymies appropriate oversight. It is also plainly an attempt to hide the treatment of people in detention from the public and infringes on basic human rights including access to justice. This Bill will cause severe harm to people in detention, including to their mental health and access to independent health and legal services, as well as suffering to their family and friends.
- Migration Amendment (Strengthening the Character Test) Bill 2019: Noting the harsh consequences of visa cancellation and refusal on character grounds, this Bill replaces the current character assessment regime with a blunt tool, setting an excessively low threshold for the automatic failure of the character test that will lead to plainly unjustified outcomes: for example detention and deportation of long-term residents for minor offences and conduct that did not otherwise lead to a significant criminal penalty.
- Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020: This Bill erodes basic protections including the rule of law. It strips away a person’s right to know and respond to the case against them – even to know that there is adverse information that cannot be disclosed. The Bill provides excessive power to the government, increases secrecy, and disproportionately affects the vulnerable.
Abode Migration Lawyers
Amnesty International Australia
Assent Migration Lawyers
Asylum Seeker Resource Centre
Australian Lawyers for Human Rights
Carina Ford Immigration Lawyers
Circle Green Community Legal
Clothier Anderson Immigration Lawyers
Flemington & Kensington Community Legal Centre
Human Rights 4 All
Human Rights Law Centre
Jesuit Refugee Service Australia
National Justice Project
New South Wales Council for Civil Liberties
Public Interest Advocacy Centre
Refugee Advice & Casework Service
Refugee Council of Australia
Southern Communities Advocacy Legal and Education Service Visa Cancellations Working Group
WLW Migration Lawyers
Dr Sara Dehm, Senior Lecturer, University of Technology Sydney Faculty of Law Dr Maria O’Sullivan, Monash University Faculty of Law
Rebecca Powell, Monash University
Dr Savitri Taylor, Associate Professor, La Trobe University Law School Nathan Wills, Solicitor/Migration Consultant, Visa Assist Australia