The Albanese Labor Government has been spooked by recent High Court decisions which protect the human rights of non-citizens who cannot be returned to their home country because they are owed protection obligations. Some of these non-citizens have committed serious criminal offences; they’ve served their prison terms; and then they have been released into the community. If they were citizens, their release into the community would not warrant much media attention nor any flurry of activity in the national Parliament. In the most recent decision YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court indicated that the Parliament would be able to legislate post-prison restrictions such as curfews and ankle bracelets for the ‘protection of the Australian community from the risk of harm arising from future offending’.
The government’s being spooked is only half the story. This government has brazenly decided to use adverse High Court decisions as a trigger for even more repressive legislation. The day after the High Court’s YBFZ decision, Tony Burke introduced to Parliament the Migration Amendment Bill 2024. This bill went well beyond any corrective to the High Court decision. It contained a raft of provisions which had never been contemplated or attempted even by John Howard and Philip Ruddock at the height of the Tampa affair in 2001. It just shows how low we have gone.
A Labor government headed by a Prime Minister from the left has sponsored legislation which is designed to ensure that there is not a sliver of light between the government and an Opposition headed by Peter Dutton who prides himself on being the toughest in the game when it comes to the treatment of asylum seekers. Clearing the decks for the 2025 election, Albanese claimed on the last day of Parliament: ‘This is what it looks like to have a government that’s prepared to work across the parliament to turn promises into progress. What those opposite have done consistently is just seek to oppose. We’re getting things done; they’re just getting angry… We’re acting responsibly; they’re acting recklessly.’ A case of what Graham Richardson famously called ‘whatever it takes’.
When introducing the bill, Tony Burke told Parliament: ‘[W]hile it is important for this legislation to go through within a reasonable time, it does not have to be rushed through this week.’ His bill not only provided for a more legally watertight regime for applying ankle bracelets and curfews on non-citizens who have been released from jail but who are unable to return to their home country. It also provided a whole new regime permitting government to remove unvisaed persons to third countries (not their own) on payment of money to the receiving countries.
With time running out for the passage of legislation before year’s end, the Senate referred the bill to the Legal and Constitutional Affairs Committee on 19 November 2024, giving citizens three days in which to make submissions, before the committee would report to the Senate after just one week. As expected, the Coalition supported the Labor bill, but they knew the legislative process was a farce. The Coalition senators distanced themselves from the abuse of parliamentary process: ‘Coalition members have carefully examined the Bill. During the course of the inquiry, assurances were provided by the Department of Home Affairs about its constitutionality. But we continue to hold significant concerns about the Albanese Labor Government’s rushed process and limited time for parliamentary scrutiny, which increases the risk of unintended consequences and drafting errors in the legislation.’ The Greens observed: ‘This is legislation that is so extreme that even the Coalition at their worst moments did not present it to Parliament.’ They were right.
Having had cause and opportunity personally to confront Minister Gerry Hand in 1992 over mandatory detention and Prime Minister Kevin Rudd in 2013 over offshore processing with no prospect of settlement in Australia, I endorse the Greens’ observation: ‘This (bill) builds on an appalling track record by Labor to invent novel and cruel ways to persecute people seeking asylum and migrants trapped in the system. It was Labor that first legislated for indefinite mandatory immigration detention in 1992 and it was Labor that legislated in 2013 so that no one who arrived in Australia by boat, regardless of their legitimate need for protection, could ever be resettled in Australia.’ Back in 1992 I said to Minister Hand, ‘Gerry, when a Labor minister from the Left does this sort of thing, we’re left with nowhere else to go.’
'The day after the High Court’s YBFZ decision, Tony Burke introduced to Parliament the Migration Amendment Bill 2024. This bill went well beyond any corrective to the High Court decision. It contained a raft of provisions which had never been contemplated or attempted even by John Howard and Philip Ruddock at the height of the Tampa affair in 2001.'
When the Senate processes are working well, bills with major human rights ramifications are routinely referred to the non-partisan Senate Standing Committee for the Scrutiny of Bills. Senator Dean Smith, Liberal Senator from WA who had been a strong advocate of same sex marriage, chairs the committee. He reported to the Senate that the Migration Amendment Bill
‘has raised significant scrutiny concerns about which the committee is seeking a detailed and expedited response from the minister. One Schedule of the bill seeks to respond to a recent High Court decision ruling that visa conditions imposing curfews and electronic monitoring were unconstitutional. The proposed amendments do not fully address the committee’s previous concerns regarding the effect on personal rights and liberties of the overall scheme and the lack of procedural fairness afforded to visa holders. Further, the committee is concerned about the effect on personal rights and liberties by measures in the bill providing for the immediate cancellation of certain visas, and therefore immigration detention, of people who are given “permission” to enter and remain in a foreign country, if it is a party to a third country reception arrangement. The bill provides the Commonwealth with the authority to take or do any action in relation to these third party reception arrangements. These powers raise significant scrutiny concerns, particularly in relation to the potential for lengthy periods of immigration detention in Australia and the potential for the Commonwealth to pay a foreign country to detain, perhaps indefinitely, the individuals removed there. The committee is concerned that there are very few safeguards in the bill setting out the extent of the Commonwealth’s powers regarding these arrangements and is questioning this broad delegation of administrative power and the potential effect on rights and liberties.’
In the end, these dispassionate, accurate, non-partisan concerns counted for nothing. Coalition front bencher James Stevens was the only Coalition member to make a substantive contribution to the second reading debate in the House of Representatives. He told the House on 20 November: ‘We are not standing in the way of the passage of this bill through the House of Representatives, and, of course, hopefully — there’s a first time for everything — the government is right this time when they say that this legislation will address the enormous loopholes that have opened up which are letting these awful criminals walk the streets and offend against innocent Australians. But we do need to test this through a Senate inquiry because we’ve been told all this before and have been let down by this government making commitments about legislation that was meant to achieve the protection of Australian citizens in our society but failed to do so. We commend the second reading through the House. In the Senate, we will be supporting a full inquiry into this legislation to properly probe and understand that it is indeed going to do what the government claims it will.’ The hypocrisy of it all was breathtaking.
While representing to the public that these extraordinary provisions permitting payments for the transfer of non-citizens to third countries, not their own, would apply only to the residual caseload of a couple of hundred persons affected by the recent High Court decisions, the government had to admit that the provisions were so widely drafted as to permit bureaucrats to apply the provisions to tens of thousands of hapless non-citizens without visas. This exchange took place before the Legal and Constitutional Affairs Legislation Committee:
‘Senator SHOEBRIDGE: There are more than 80,000 people who could be removed to a third country if the parliament gave the department and the minister this power. The best estimate is probably more than 80,000, isn’t it — 75,400 people who don’t have a visa; 4,452 on BVEs; 986 in detention; another 193 entering detention; 246 on BVRs as a result of NZYQ; and another 96 on BVRs. When Minister Thistlethwaite claimed that this law would only impact criminals, that was just plainly untrue, wasn’t it?
‘Mr Michael Thomas, Group Manager, Immigration Compliance Group, Department of Home Affairs: To put those numbers into context, there are a lot of noncitizens that do depart of their own accord.
‘Senator SHOEBRIDGE: Sorry, I couldn’t hear that.
‘Mr Thomas: A large number of unlawful noncitizens depart Australia quickly. That number I gave you could be people unlawfully in the community for 10 minutes or a couple of days after their visa has expired. A large number of those people will depart.’
No wonder Greg McIntyre SC, President of the Law Council of Australia, submitted to the committee: ‘The truncated process does not ensure proper democratic scrutiny of the bill by the parliament and the community, and undermines Australia’s standing as a democratic global leader. The scrutiny process in relation to this bill is particularly objectionable given that it includes far-reaching changes to the law which will likely have a significant impact on the rights and liberties of many members of our community.’
If other countries were to pass legislation of this sort, there would be an international market for unwanted human beings being exported as flotsam from wealthy countries with secure borders. Last Wednesday when the government and opposition struck a deal agreeing to the immediate passage of the legislation, the shadow minister Dan Tehan boasted that the Coalition was now ‘basically running the immigration system for the government because they have failed … to do it themselves’. On Thursday when the bill came on to the floor of the Senate, the Deputy President of the Senate called for consideration of second reading amendments at 9.15pm. The bill was then passed by the Senate at 9.50pm, returning to the House of Representatives for passage at 7.30am on Friday.
There’ll be more High Court litigation in the future. Governments of either political persuasion will be temporarily spooked before trying even more repressive measures. Sadly, that’s what we’ve come to. We can all be grateful for the High Court because the present parliament is useless on these issues and the major political parties are bereft of any philosophical coherence. Our elected leaders Albanese and Dutton have learnt nothing from the last High Court case when the Chief Justice and three of his fellow Justices observed that ‘underlying the questions in the special case are fundamental issues of constitutional principle of equal relevance to aliens within and citizens of Australia’.
An Albanese government spooked on asylum issues both by the High Court and a Dutton Opposition is a pathetic sight. If next year’s election delivers a minority Albanese government, competent government will have its challenges. But, at least, the Greens, Teals and other independents will be able to insist on the repeal of the overbroad provisions of the Migration Amendment Act 2024 while the government remains able to retain ankle bracelets and curfews for the ‘protection of the Australian community from the risk of harm arising from future offending’.
Fr Frank Brennan SJ is the author of Tampering with Asylum (University of Queensland Press, two editions, 2003 and 2007). He was awarded the Humanitarian Overseas Service Medal for his work in Timor Leste when Director of the local Jesuit Refugee Service. He was recipient of the Australian Centenary Medal for service with refugees and human rights work in the Asia Pacific Region, and of the Migration Institute of Australia’s 2013 Distinguished Service to Immigration Award.