Tue Mar 26

Government rushing through bill to crack down on ‘uncooperative’ non-citizens it is trying to remove

Written by: Michelle Grattan, Professorial Fellow, University of Canberra

The government is seeking to rush legislation through parliament to crack down on non-citizens who refuse to cooperate with attempts to remove them.

The bill, introduced by Immigration Minister Andrew Giles just after noon on Tuesday, also allows a minister to designate a country as a “removal concern country” when it won’t cooperate with the return of its citizens.

This would mean that, apart from certain exceptions, nationals of that country who are outside Australia could not apply for a visa to come here. Exemptions would be for close family members of Australian citizens and permanent residents as well as applications for refugee and humanitarian visas.

Giles said: “This legislation sends a strong signal about the government’s expectations of cooperation with removal efforts, by non-citizens who are on a removal pathway, and by other countries where it is appropriate for them to accept their nationals on removal from Australia”.

The government wants the legislation, which has gone through the House of Representatives, passed by the Senate on Tuesday night, or Wednesday at the latest. Parliament adjourns on Wednesday until the budget on May 14.

The government allowed minimum opportunity for debate in the house. It said there were time factors requiring the legislation to be passed quickly.

The opposition demanded a brief Senate inquiry to be held late on Tuesday so it could question officials. The government agreed to it.

Crossbenchers were outraged at the lack of time to consider the bill.

The government’s action is driven by a looming High Court decision next month that, if it went against the Commonwealth, could prompt the release of another group of people from immigration detention.

The case is about an Iranian citizen who has been in immigration detention for a decade. He has refused to cooperate with efforts to send him back to Iran, saying he fears for his life. Iran won’t take back involuntary removals.

The government believes it is more likely to win this case than an earlier High Court one, when its defeat led to the release of 152 people from immigration detention. But it wants to bolster its defences.

Giles said people who refused to cooperate with their removal would face penalties of a mandatory minimum sentence of one year in jail and a maximum of five years.

Giles told parliament: “Unfortunately, examples of non-cooperation with the government’s removal efforts have been going on for far too long. Against the expectations of the Australian community. And undermining the integrity of our migration laws.”

The measures “will make clear that a non-citizen who is on a removal pathway is expected to voluntarily leave Australia. And must cooperate with steps taken to arrange their lawful removal from Australia.

"The removal pathway direction provides a positive duty on the non‑citizen to cooperate with removal efforts,” Giles said.

An example of the cooperation required from those subject to removal is completing, signing and submitting an application for a passport or other foreign travel document to facilitate their removal.

“When this legislation is enacted, it will make clear that the parliament expects foreign countries to cooperate with Australia to facilitate the lawful removal of their citizens from Australia,” Giles said.

Briefing crossbenchers, Giles named Iran and Iraq as countries which did not take back involuntary returns but indicated there could be a number of others potentially affected by the legislation. Government sources other countries could be Zimbabwe and South Sudan.

He told parliament the legislation would apply to various categories of non-citizens who are on “removal pathways”.

He stressed: “these amendments are targeted at non-citizens who have come to the end of any visa application processes.

"These individuals may be unlawful non-citizens who have exhausted their visa processing options. And who are being held in immigration detention

"Or they may be in the community on a bridging visa that is issued for removal purposes.”

In a range of safeguards in the legislation, the minister may not give a direction

“if the non-citizen has applied for a protection visa and the application is not yet finally determined
to take an action in relation to a country from which the individual is owed protection
directly to children under 18 (but can make a direction to that child’s parents to take certain actions)
to take actions related to making or withdrawing an Australian visa application, or in regards to court or tribunal proceedings.”

Greens senator David Shoebridge accused Labor of “trying to outflank the Coalition to the right by coming up with new and novel ways to be cruel particularly to refugees and asylum seekers”.

The opposition spokesman on home affairs, James Paterson, said: “It feels like groundhog day. Another day, another rushed, patch up job from a panicked government when it comes to border protection, national security and community safety.

"This is now the fourth piece of legislation that the Albanese government has dropped on the opposition and the crossbench in the parliament and asked us to pass in as little as 36 hours to deal with the rolling crisis of immigration detention.”