Law Council of Australia (LCA) has raised major concerns about the Migration Amendment (Removal and Other Measures) Bill 2024, which passed the House of Representative yesterday.
LCA President Greg McIntyre said the Bill presented serious rule of law and human rights concerns, and should not be passed by the Parliament without proper review.
“The fact it has already been passed by the House of Representatives shifts urgent responsibility onto the Senate to take action to give this Bill the scrutiny and consideration it requires,” he said.
“The Law Council observes – as it did in the context of the recent Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) – that consultation and transparency are lacking in the introduction of the Removal Bill, and that rushed law-making is inherently undesirable.”
The LCA’s concerns about the Bill include:
- its apparent use to pre-empt a High Court ruling;
- its removal pathway direction powers, which enable the Minister to require individuals (“removal pathway non-citizens”) to take steps to facilitate their removal from Australia. Non-compliance with such a direction is an offence;
- its inclusion of a mandatory minimum sentence for refusing or failing to comply with a “removal pathway direction” in proposed s 199E(2); and
- the proportionality of prescribing a maximum sentence of five years imprisonment for failing to comply with such a direction, noting that the failure may involve relatively minor conduct which is not harmful or dangerous;
“In effect, this Bill will implement mandatory sentencing,” he said.
“As we have warned before, mandatory sentencing results in harsh and unjust punishments because it tries to apply a theoretical blanket standard to the real life, complex circumstances that surround each criminal act.
“Personal, discretionary powers of the Minister, to be exercised in the national interest, are in most circumstances not subject to administrative or judicial review. These kinds of powers are inherently problematic from an accountability perspective.
“Although the Removal Bill contains certain safeguards, including with respect to the proposed removal pathway direction power, and the proposed designation of removal concern country power, these do not appear to be sufficient to address the Law Council’s concerns about the Bill. The Bill requires further democratic scrutiny and the people it will impact deserve more time and care to be taken.”
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