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The Kaldor Centre for International Refugee Law has serious concerns about the scope and ramifications of the , which was rushed into Parliament today. It gives the Minister extraordinarily broad and ill-defined powers which would make a person’s failure to cooperate with the government’s efforts to remove them a criminal offence; expand the Minister’s powers to reverse protection findings; and see entire countries subject to travel bans, prohibiting their citizens from coming to Australia for holidays, work or education – in an attempt to pressure those countries to accept forced returns.

The impetus for the bill appears to be the need to deal with people affected by last year’s ending indefinite detention – and, in particular, pending litigation in the High Court concerning people who are not cooperating with efforts to remove them. However, the bill (helpfully analysed by the Human Rights Law Centre ) goes much further than this limited cohort, targeting anyone on a removal pathway, including:

• Unlawful non-citizens
• Bridging (Removal Pending) visa (BVR) holders
• Bridging (General) visa (BVE) holder who hold the visa
• And extraordinarily any other non-citizens prescribed in the Migration Regulations (which would allow the Minister to designate other cohorts to be added)

According to the accompanying the bill, it will ‘enable the Minister to give a direction to a removal pathway non-citizen to do specified things necessary to facilitate their removal, or to do other things the Minister is satisfied are reasonably necessary to determine whether there is a real prospect of their removal becoming practicable in the reasonably foreseeable future’. This may include signing and submitting certain documents required for travel, such as a passport, attending an interview with an official, or providing documents to an official. If a person does not comply with a removal pathway direction, and does not have a ‘reasonable excuse’, they will face a mandatory gaol term of between one and five years, a $93,900 fine, or both. The fact that someone faces a real risk of persecution or other serious harm does not count as a ‘reasonable excuse’.

Proposed section 199D seeks to exempt refugees and others to whom Australia may owe protection obligations from a removal direction. However, we are concerned that the bill could still lead to people who do have protection claims being forced to return to countries where their life or freedom is threatened. For instance, the Labor party has itself that fast-track processes have not been ‘fair, thorough and robust’, meaning that people with genuine refugee claims were denied protection. For other people, their personal circumstances or the situation in their home country may have changed since their protection claim was determined.

As the Refugee Council of Australia has : ‘While the legislation provides that these powers won’t apply to those who have been found to be refugees by Australia, we are concerned that those who do have strong claims, but have not had a fair hearing or review, will be sent back to real harm.’  

There is no precedent in Australian law for a failure to comply with a direction resulting in mandatory imprisonment – not even in the context of terrorism offences. The only comparable provisions are a failure to comply with police directions to move on (under various state laws), where a couple of offences (concerning failure to disclose identity) may be punished by up to 12 months’ imprisonment. In some states, reportable offenders, such as child sex offenders who fail to produce electronic devices when directed by police, may face up to five years in prison. However, across all these existing provisions, these are maximum sentences, not a mandatory minimum sentence.

It is particularly extraordinary that failing to sign and submit a document, without any intention of wrongdoing, could result in a mandatory prison sentence. Indeed, the Explanatory Memorandum to the Bill itself concedes that the use of mandatory minimum sentences could violate Australia’s obligations under international law.

We are also concerned by the bill’s proposal to ‘blacklist’ entire countries and prevent their citizens from applying for Australian visas. From a human-centred perspective, punishing people who may wish to work, study in or visit Australia for the actions of their government is punitive – particularly when the relevant countries are non-democratic autocracies.

The Australian government’s frustration at not being able to remove certain non-citizens is not unique. In 2020, only around 18 per cent of people in the US who had received removal orders were actually deported. Similarly, in the EU, only around 19 per cent were removed during 2015–19. These low rates were largely attributed to so-called ‘uncooperative’ or ‘recalcitrant’ countries of origin refusing to accept the return of their citizens.

While the US can refuse to issue visas to nationals of designated ‘recalcitrant’ countries, it first whether a country is deliberately uncooperative or may be affected by mitigating factors, such as the impacts of a disaster or limited capacity generally, such as ‘law enforcement, inadequate records, and/or inefficient bureaucracy’. By contrast, the Australian bill contains no suggestion that such considerations will be taken into account.

Furthermore, while the evidence suggests that pressure can work in some cases, in others, countries ‘ in ways detrimental to bilateral trade, tourism, law enforcement, or other forms of cooperation’. In our view, there are considerable risks to managing international relations through punitive unilateral measures. The issue of international cooperation concerning the return of nationals to their home country is a diplomatic one that should be negotiated in good faith between political leaders.

As one scholar has , this ‘leaves deporting states in a conundrum. Politically motivated noncollaboration requires a different response than a simple dysfunctional bureaucracy.’ This brings into question the Australian government’s assertion in the Explanatory Memorandum that blacklisting ‘is an appropriate and proportionate measure to safeguard the integrity of Australia’s migration system, available if necessary to act in the national interest to slow down that entry pipeline into Australia and reduce growth in the cohort of potentially intractable removals over time.’

For media interviews, please contact Lauren Martin / lauren.martin@unsw.edu.au / 0407 393 070.