Migration Amendment (Clarifying International Obligations for Removal) Act 2021
A key objective of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Migration Amendment Act) is to ensure that the Migration Act 1958 (Migration Act) does not authorise or oblige an officer1 to remove a person found to engage Australia’s international obligations relating to non-refoulement to the country from which they seek protection, in breach of those obligations.2
The Law Council welcomes the amendments made by the Migration Amendment Act to the extent that they better ensure that the Migration Act is consistent with Australia’s international obligations in relation to non-refoulement.
The Law Council has previously made submissions expressing the view that section 197C of the Migration Act did not, prior to these amendments, accord with Australia’s international obligations relating to non-refoulement and it increased the likelihood that Australia will fail to meet its obligations under the Refugee Convention.3
A recent decision by the Federal Court highlighted this issue.4 The Federal Court held that the removal of a person from Australia had not been carried out as soon as reasonably practicable, as required by the Act, because no steps had been taken to remove the person to a country from which they had been found to be owed protection.5 The issues raised by this decision required an urgent response.
Given the complexity and importance of the relevant issues, it is also important that the amendments made by the Migration Amendment Act and the implications of those amendments be subject to appropriate levels of scrutiny and consultation in the coming period.
To this end, the Law Council encourages the Australian Government to consider further amendments to the Migration Act to ensure greater consistency with rule of law principles, and Australia’s international obligations.
This submission sets out key recommendations to further enhance the effectiveness of the amendments made by the Migration Amendment Act. It also includes suggested reforms to ameliorate the risk that the Migration Amendment Act may increase the likelihood that persons who are found to engage Australia’s protection obligations, but who are refused a visa on character or national security grounds, will be subject to indefinite immigration detention.
The Law Council’s proposed reform principles would also bring the Migration Act more in line with other Commonwealth countries – which provide mandated safeguards on immigration detention more in keeping with international obligations (see high level summary of the Canadian scheme, as one point of comparison, in Attachment A) – and would reduce the very high costs of detention.
The Law Council considers that there is an opportunity now to review and enhance the immigration detention scheme provided for by the Migration Act and would like to work with the Australian Government to achieve this.
You can read the full submission below.
1 Defined in subsection 5(1) of the Migration Act as, relevantly, an officer of the Department, an officer for the purposes of the Customs Act 1901, a protective service officer for the purposes of the Australian Federal Police Act 1979, a police officer, or a person authorised by the Minister.
2 Commonwealth, Parliamentary Debates, House of Representatives, 25 March 2021, 2 (Alex Hawke, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs).
3 Law Council of Australia, submission no 129 to the Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, An inquiry into the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, -.
4 AJL20 v Commonwealth  FCA 1305.
5 AJL20 v Commonwealth  FCA 1305,  and -.
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