March 27, 2024
On Tuesday, the government surprised the parliament with a bill that could force the hand of people who obstruct deportation, and threaten countries with travel bans if they refuse to accept deportees.
The motivation was obvious, even if the government has been decidedly reluctant to acknowledge it directly.
The High Court is considering the case of an Iranian man, known by the pseudonym ASF17, who fits the description of a man resisting deportation. And Iran fits the description of a country that refuses to accept deportees who come unwillingly.
Should the High Court find in favour of ASF17, the government would have a larger set of individuals it must make alternative arrangements for.
That would be a very similar position to the one it found itself in when it had to release 150 detainees after an earlier High Court case last year, which it navigated with great difficulty.
This new bill, as Home Affairs secretary Stephanie Foster told a Senate committee on Tuesday night, would give the government extra "tools" to deal with this fresh case, should it go against the government.
But in that hastily-convened, late-night Senate hearing, senators from the Coalition and the crossbench had a bevy of other questions about the bill that could not be answered.
And though the Coalition and the Greens had very different questions, they joined forces to delay the bill until May, frustrating the government's desire for swift passage and opening up weeks of deliberation.
Three key questions will need to be explored.
One component of the government's bill would give the immigration minister the power to impose an effective travel ban on countries who make deportation difficult.
For example, there are a handful of countries who refuse to accept involuntary returns, including Iran, Iraq, South Sudan, Zimbabwe and Russia.
And the department pointed to a second category of countries with no such rule, but which choose to make things difficult for the government anyway. Those countries might also be captured by a ban.
But any ban would not apply automatically. The minister would have to decide to make a designation, in consultation with the prime minister and foreign minister.
And officials were quick to emphasise they didn't imagine this power would necessarily be used. Instead, it was described as "leverage" – a country making life difficult could be threatened to comply with the prospect of a ban, but the ban itself would be a last resort.
Still the bill would give the government a power to enact a ban which it does not currently have. Officials declined to point to any countries who might be "leveraged", citing diplomatic sensitivities.
The first component of the government's bill would give the immigration minister the power to compel certain people to facilitate their own deportation.
Those people could be ordered to apply for passports and board flights to their country of origin, or a third country. Non-compliance would carry a mandatory minimum one-year prison sentence, up to a maximum of five years.
The simple description of who this can apply to is: any non-citizen who has exhausted all legal avenues to remain. But it quickly gets more complicated.
First, this includes 150–200 people who are currently in immigration detention and who, according to the department, are obstructing their own deportation.
Second, it includes some of the 150 people released from detention last year after the NZYQ High Court ruling. Those people were deemed to have no realistic prospect of deportation, and the High Court said that made their detention unlawful.
But the department believes these new powers would open up the possibility of deportation in some of those cases, though officials were reluctant to say how many.
Third, it could also apply to a much larger group of people currently living in the community on Bridging Visa E.
That group includes the "Medevac" cohort, a large number of people who have been found to be refugees, but who are unable to obtain permanent residency in Australia owing to government policy, because they arrived by boat.
Many in this cohort have already been resettled in third countries, such as the United States or New Zealand, where the government has struck a deal.
But those who remain, for whatever reason, could under this bill be compelled to facilitate their own deportation. This may be to the US, New Zealand or some other country.
Some people could also be forced to return to their country of origin, because the bill would give the government the power to reassess a previous determination it has made that someone on a Bridging Visa E is owed protection.
But the government has suggested this would not apply to the Medevac cohort, since their refugee claims are not managed by Australia.
The department could not confirm how many people on bridging visas would be covered. There are thousands of people on bridging visas, but Ms Foster said it would likely be a small percentage of those.
Orders to comply with deportation would not automatically apply to everyone in this cohort. They could be applied by the government on a case-by-case basis.
At a press conference on Wednesday, Home Affairs Minister Clare O'Neil and Immigration Minister Andrew Giles struggled to answer why the bill needed to be passed this week. When asked whether it was because of the High Court case, Ms O'Neil said it would be inappropriate to comment.
But the government's concerns about that case are known. Earlier this year, Attorney-General Mark Dreyfus asked for the case to be fast-tracked to the High Court, a signal the government was already thinking about its implications. And the Senate committee heard the department began drafting the bill in early March.
Departmental officials were also reluctant to directly link the case and the bill. Ms Foster only went as far as to say the bill would help the government to handle an ASF17 loss but did not say this was the motivation for the bill.
Those word games were enough for the Coalition to decide to delay the bill. Shadow Home Affairs spokesperson James Paterson said the Coalition had "begged" officials to give a reason for the urgency, but he was not satisfied with their answers.
"They couldn't explain how many people this would affect. They couldn't explain what the consequences would be for any upcoming High Court cases. They couldn't explain how or when they would use this legislation or who it would apply to," he said.
Greens senator David Shoebridge was similarly scathing that officials could not say who the legislation would apply to. He said the bill was likely to end up challenged in the High Court if not properly scrutinised and called Tuesday night's hearing a "sham".
The result is a few more months to answer all these questions.
