The human rights committee has warned the Albanese government’s migration bill could result in lengthy spells in detention before non-citizens are deported to countries paid to take them.
In a report tabled on Wednesday the bipartisan committee, chaired by Labor MP Josh Burns, threw up significant roadblocks to the controversial bill and also queried the move by the home affairs minister, Tony Burke, to reimpose ankle bracelets and curfews on those released from immigration detention.
The bill, introduced earlier in November and set to pass with Coalition support, facilitates removal of non-citizens from Australia, including by giving the government authority to pay third countries to take them and allowing them to be re-detained if they refuse.
Those susceptible include the more than 200 people on Bridging Visa R, released as a result of the high court ruling that indefinite detention is unlawful; 374 non-citizens in immigration detention; and those on general bridging visas granted so they can make “acceptable arrangements to depart Australia”.
Experts and the Greens estimated this includes thousands of people who have been refused protection visas with no merits review application afoot, people brought to Australia from offshore detention and people whose protection visas were rejected by the fast-track method.
The committee noted that after Australia struck a deal with a third country there “may be a significant intervening period” before they are in a position to accept them, for example where reception facilities require construction. This could result in non-citizens being held in immigration detention for “a significant time”, it said.
Because the bill gives the foreign country the ability to set conditions on receiving non-citizens from Australia, imposition of “unattainable or unrealistic” conditions “may mean that affected persons are subject to extended immigration detention”.
The bill’s explanatory memorandum notes that it is not intended that Australia will owe human rights obligations to non-citizens once they leave.
But the committee noted the test in international law is whether Australia “is exercising sufficient control”, which may make Australia responsible for separation of families or the person being returned to the country from which they sought protection.
In November the high court ruled that regulations imposing ankle bracelets and curfews as default visa conditions on those released from indefinite detention was unlawful.
But Burke remade regulations allowing him to reimpose those visa conditions, if the minister were satisfied it is necessary to protect against the harm of serious crimes.
The committee said it “remains unclear why punitive conditions including electronic monitoring are necessary to manage the potential safety risk posed” by those released.
“This is particularly so noting that Australian citizens who have been convicted of a criminal offence and served their sentence do not have equivalent conditions or restrictions imposed on them indefinitely.”
The committee said that mandatory minimum sentences of one year in prison for breach of the conditions “removes judicial discretion to take into account all of the relevant circumstances of a particular case” and “may lead to the imposition of disproportionate or unduly harsh sentences of imprisonment”.
The bill passed the House of Representatives on Wednesday. It is set to be examined in a one-week inquiry by the legal and constitutional affairs committee, with a hearing to be held on Thursday evening. The government is yet to give any detail about which countries it proposes to send non-citizens to.
A home affairs department spokesperson said the bill would “provide the legislative framework to enable the department to agree on an arrangement for the removal of non-citizens who have exhausted all pathways to remain in Australia, and cannot be returned to the country from which they came”.
“It would not be appropriate to comment on individual third [country] reception arrangements,” the spokesperson said.
