Migration Amendment (Removal and Other Measures) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 69 (27 March 2024)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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Migration Amendment (Removal and Other Measures) Bill 2024^[2]

Purpose	The Migration Amendment (Removal and Other Measures) Bill 2024 (the Bill) amends the Migration Act 1958 (the Migration Act) to set out clear legislative expectations in relation to the behaviour of non-citizens who are on a removal pathway. As amended, the Act will make clear that a non-citizen who is on a removal pathway is expected to voluntarily leave Australia, and will cooperate with steps taken under the Migration Act for the purposes of arranging the non-citizen’s lawful removal from Australia. The bill also empowers the minister to designate countries as a ‘removal concern country’ by legislative instrument, with the effect of invalidating visa applications from citizens of that country located outside of Australia.
Portfolio	Home Affairs
Introduced	House of Representatives on 26 March 2024
Bill status	Before the Senate

Undue trespass on rights and liberties
Significant matters in delegated legislation^[3]

1.2 Item 3 of Schedule 1 to the bill would insert proposed section 199B into the Migration Act 1958 (the Migration Act), which determines the categories of persons considered ‘removal pathway non-citizens’. Paragraph 199B(1)(d) specifies that this includes lawful non-citizens who hold visas prescribed by legislative instrument for the purposes of paragraph 199B(1)(d).

1.3 In this instance, it is unclear to the committee on what basis additional visas may be prescribed for the purposes of paragraph 199B(1)(d). The explanatory memorandum provides the following explanation:

Paragraph 199B(1)(d) is intended to provide the Government with flexibility to prescribe categories of visa holders who could be brought under the meaning of removal pathway non-citizen, if necessary to do so in the future. Any regulations made for the purposes of this paragraph would be a disallowable legislative instrument for the purposes of the Legislation Act 2003, and appropriately subject to parliamentary scrutiny. The same safeguards in relation to the exercise of the Minister’s power under new section 199C—including those set out in new section 199D—would apply in relation to the holder of any visa prescribed for the purposes of this paragraph.^[4]

1.4 While noting this explanation, the committee is of the view that the ability to expand the scope of people that may be subject to removal pathway directions is a significant matter that would more appropriately be dealt with by way of primary rather than delegated legislation. This is particularly the case due to the fact that, as discussed below, the failure to comply with a removal pathway direction is a serious offence carrying a severe maximum penalty and a minimum penalty of 1 year imprisonment. The committee does not consider that the justification provided in the explanatory memorandum is sufficient, noting that the need for flexibility in the circumstances of the legislative scheme is not fully explained or balanced against the potential impact that the provision could have on individuals. The committee’s concerns are heightened in this instance as paragraph 199B(1)(d) is applicable to lawful non-citizens who have been granted a visa permitting residence in Australia, who may have lived in Australia lawfully for an extended period and have no certainty or clarity as to when a visa may be subject to a removal pathway direction.

1.5 Proposed subsection 199C(1) provides the minister with the power to issue written directions to the removal pathway non-citizen cohort, with the directions set out in the subsection as an exhaustive list. Proposed subsection 199C(2) further empowers the minister to issue directions to do or not do a thing if satisfied the measure is reasonably necessary to determine whether there is a real prospect of removal under section 198 becoming practicable in the reasonably foreseeable future, or to facilitate removal under section 198. Proposed subsection 199C(4) provides that the direction must specify the period of time in which the person either must do the directed thing, or during which they must not do the directed thing. 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 and to seek legal advice.

1.6 Item 3 of Schedule 1 to the bill would also insert proposed subsection 199E(1), which creates an offence where a person who is a removal pathway non-citizen and has been given a removal pathway direction refuses or fails to comply with that direction. This offence carries a maximum penalty of 5 years imprisonment or 300 penalty units. Subsection 199E(2) also requires that the court impose a mandatory minimum sentence of 12 months imprisonment on an individual who is convicted of an offence under subsection 199E(1).

1.7 The explanatory memorandum provides the following justification for the imposition of a high maximum penalty and a mandatory minimum sentence:

It reflects the seriousness of the offence in the context of the integrity of Australia’s migration system, where a removal pathway non-citizen does not cooperate with, or otherwise frustrates, legitimate and lawful efforts to remove them under the Migration Act. The mandatory minimum term of 12 months’ imprisonment on conviction for the offence is also appropriate, where the Migration Act, as amended, makes clear the expectation that a removal pathway non-citizen will voluntarily leave Australia, and that if they do not leave voluntarily, they will cooperate with removal efforts and not attempt to obstruct or frustrate their lawful removal.^[5]

1.8 While the committee acknowledges that the penalty and minimum sentence 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.^[6] The committee reiterates that the courts should not be limited in their ability to impose sentences with regard to the circumstances of the offending.

1.9 Proposed subsection 199E(3) provides that subsection 199E(1) does not apply where a person has a reasonable excuse for refusing or failing to comply with the removal pathway direction. Proposed subsection 199E(4) provides examples of what may not constitute reasonable excuses, which included a genuine fear of suffering persecution or significant harm if a person is removed to a particular country^[7] and being or claiming to be a person in respect of whom Australia has non-refoulement obligations.^[8] The explanatory memorandum does not provide any guidance as to how a reasonable excuse may be understood and states:

There are restrictions in section 199D on the giving of a removal pathway direction to a non-citizen in relation to whom a protection finding has been made where the direction relates to the country with respect to which the finding was made, or who has made an application for a protection visa that is not finally determined. Those are matters that constrain the Minister’s power to make a direction. However, where no such limitation is engaged, subsection 199E(4) makes it clear that certain subjectively-held fears do not amount to a ‘reasonable excuse’ for the purposes of subsection 199E(3).^[9]

1.10 While acknowledging that the inclusion of this reasonable excuse defence is a safeguard, the committee is of the view that it may also suggest that the power of the minister to give directions under proposed section 199C may be overly broad. In the context of an offence carrying such a significant maximum penalty and a mandatory minimum sentence, the committee considers that there should be some guidance as to when an affected person will not be subject to these penalties. The breadth of the term ‘reasonable excuse’ may result in persons complying with directions even when it may be lawful for them to refuse to do so.

1.11 While the committee acknowledges that the legislation provides examples of when a refusal does not constitute a reasonable excuse, the committee considers that many of the matters that could be taken to be reasonable excuses would have been more appropriately dealt with by better delimitation of the directions which can be lawfully given by the minister. For example, the provision could specify that the minister may only give directions with which it is possible to comply, cannot give a direction to produce a document the non-citizen does not have or which has been destroyed, or must not give directions that do not relate to a purpose which is to enable removal.

1.12 Finally, item 5 of Schedule 1 to the bill provides that paragraphs 199B(1)(b) and 199B(1)(c) apply in relation to a non-citizen who holds a visa, whether the visa was granted before, on or after the commencement of these measures.

1.13 In addition, item 4 of Schedule 2 to the bill would repeal and replace subsection 197D(1) of the Migration Act. Section 197D of the Migration Act provides that a protection finding can be revisited in certain circumstances, when the circumstances of the country of origin or the protection visa holder have changed. Item 3 also amends existing section 197C to make consequential and machinery changes to give effect to the expansion of the minister’s power to revisit protection visa decisions.

1.14 The effect of these amendments is to empower the minister to revisit the circumstances of an existing protection decision for removal pathway non-citizens and determine whether that person is no longer a person owed protection.

Section 197D has been amended by items 4-7 of this Schedule so as to enable the revisitation of a protection finding in relation to a broader range of non-citizens. As well as unlawful non-citizens to whom section 198 applies, amended section 197D now applies to removal pathway non‑citizens, including holders of Subclass 070 (Bridging (Removal Pending)) visas and Subclass 050 (Bridging (General)) visas granted on ‘final departure’ grounds. Where the circumstances of the person or the country in relation to which a protection finding has been made have changed, it may be necessary to revisit the protection finding. If under subsection 197D(2) a decision is made to set aside the protection finding, the removal of the non‑citizen will, or would, no longer be prevented by subsection 197C(3).

A protection finding made with respect to a non-citizen who is not a removal pathway non-citizen will not be able to be revisited. The focus of this amendment, and this Bill, is on facilitating the lawful removal of non-citizens who are on a removal pathway, and apply only in circumstances where a protection finding has not been made in relation to the non-citizen, or where the Minister determines that a non-citizen is no longer a person in respect of whom any protection finding would be made.^[10]

1.17 While acknowledging that the power to revisit and overturn protection visa decisions was already provided for in the Migration Act, the committee is concerned that the amendments made to sections 197C and 197D are expanding the classes of persons for whom the minister is empowered to overturn a protection decision. This is clearly a significant and rights affecting matter and it is not clear to the committee why such a power is necessary as it has not been fully explained in the explanatory memorandum. It is also unclear to the committee whether any procedural fairness protections apply in relation to any decisions made by the minister to overturn an existing protection decision.

1.18 The committee requests the minister’s response to the committee’s scrutiny concerns and suggested alternative approaches, outlined above, and notes that such a response could also be provided to the Senate during its consideration of the bill.

1.19 The committee otherwise draws these matters to the attention of senators and leaves to the Senate as a whole the appropriateness of the provisions.

Significant matters in delegated legislation
Broad discretionary powers^[11]

1.20 Item 3 of Schedule 1 to the bill would insert proposed section 199F into the Migration Act, to empower the minister to designate a country as a ‘removal concern country’ by legislative instrument. Proposed subsection 199F(1) provides that the minister can make such a determination if they consider it in the national interest to do so. Proposed subsection 199F(2) provides that the minister must first consult with the Prime Minister and the minister administering the Diplomatic Privileges and Immunities Act 1967. Proposed subsection 199F(5) would provide that the rules of natural justice do not apply to the exercise of ministerial power to designate a removal concern country or to revoke an existing designation.

1.21 Item 3 of Schedule 1 to the bill would also insert proposed section 199G. Proposed subsection 199G(1) would provide that an application for a visa by a non‑citizen is not a valid application if the applicant is a citizen of a designated removal concern country and is outside Australia at the time of application. Proposed subsection 199G(3) provide that the minister can designate a class of persons or visa applicants for the purposes of proposed paragraphs 199G(2)(e) and (f), which means that the minister can declare further exceptions to the visa ban by legislative instrument, and with no criteria for consideration set out in the primary legislation.

1.22 Some exceptions are built into the provision, including, for example, proposed subsection 199G(2) which provides that the visa application bar does not apply to spouses, de facto partners or dependent children of Australian citizens, permanent visa holders, or persons who usually reside in Australia without time limits. Proposed subsection 199G(4) also provides that minister may provide that proposed subsection 199G(1) does not apply, and allow a person to apply for a visa, if the minister thinks it is in the national interest to do so. However, proposed subsection 199G(8) provides that the minister is not required to consider a request made under proposed subsection 199G(1).

1.23 The committee is concerned that such a significant matter is being left to the broad and unfettered discretion of the minister and is to be set out in delegated legislation. The committee considers that the designation of a country as a ‘removal concern country’, the effect of which is to effectively ban those citizens from applying for an Australian visa, is a significant matter which is more appropriate for primary legislation and the full parliamentary consideration afforded to Acts of parliament. A legislative instrument, made by the Executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.24 It is also unclear to the committee on a reading of the bill and the explanatory memorandum whether the minister may designate multiple countries as removal concern countries under a single instrument made under proposed section 199F, or is restricted to only designate a single country in each instrument. Noting the impact that designating multiple countries within a single instrument could have on the efficacy of parliamentary scrutiny of such legislative instruments, the committee seeks advice on this matter.

1.25 The committee requests the minister’s response to the committee’s scrutiny concerns, outlined above, and notes that such a response could also be provided to the Senate during its consideration of the bill.

1.26 The committee otherwise draws these matters to the attention of senators and leaves to the Senate as a whole the appropriateness of the provisions.

Parliamentary scrutiny^[12]

1.27 From a scrutiny perspective, the committee notes with concern the speed with which this bill is anticipated to pass the Parliament. The bill was introduced in the House of Representatives on 26 March 2024 and passed by that House in just over two hours. While the committee welcomes that senators had the opportunity to question departmental officials in a hearing of the Legal and Constitutional Affairs Legislation Committee, later in the day on 26 March, the committee notes that the truncated time between introduction of the bill and the hearing may have impacted the ability of senators to meaningfully engage with the bill, in order to scrutinise the bill to the fullest extent.

1.28 The committee notes that the timeline for the passage of the bill also impacts the ability of this committee to undertake its usual scrutiny process, including to engage in meaningful dialogue with the Executive in order to address any possible concerns.

1.29 The committee is of the view that truncated parliamentary processes by their nature limit parliamentary scrutiny and debate. This is of particular concern in relation to bills that may seriously impact on personal rights and liberties.

1.30 The committee notes that 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. Such rapid changes prevent certainty in the law, which is of concern noting that the changes in this bill, as discussed in this entry, may have a significant impact on the rights and liberties of the individuals affected.^[13]

1.31 The committee notes that the standing orders of both houses of the Parliament with respect to legislation are designed in order to provide members of the Parliament with appropriate time to consider and reconsider the proposals contained in the bills.

1.32 While the procedure to be followed in the passage of legislation is ultimately a matter for each house of the Parliament, the committee reiterates its consistent scrutiny view that legislation, particularly legislation that may trespass on personal rights and liberties, should be subject to a high level of parliamentary scrutiny.

^[3] Schedule 1, item 3, proposed sections 199B and 199E; and Schedule 2, item 4, proposed subsection 197D(1). The committee draws senators’ attention to these provisions pursuant to Senate standing orders 24(1)(a)(i) and (iv).

^[11] Schedule 1, item 3, proposed sections 199F and 199G. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(ii) and (iv).

^[12] The committee draws senators’ attention to this matter pursuant to Senate standing order 24(1)(a)(v).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests