We recommend that the Government bins this repugnant bill and we urge all of our members to take a vocal, immediate stand against it. It attempts to legitimate the exclusion, detention, and criminalisation of people based on where they are born. The NSWCCL recommends that the Government reconsider its approach to legislating on this issue and engage in a more transparent and consultative process reflective of the importance of the fundamental principles of democracy including the separation of powers and rule of law.
The Bill, and moreover the circumstances surrounding its introduction following the High Court of Australia’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ), have compounded our serious concerns about the Australian Governments approach towards fundamental civil liberties. The urgency of the Government to pass this legislation in a single day demonstrates a flagrant lack of respect and integrity of the parliamentary process.
1. Australia’s approach to civil liberties and human rights is continuing to worsen
Despite the right to freedom from arbitrary detention being acknowledged by the High Court on numerous occasions, the Government appears to be intent on using imprisonment as a preventative measure. The Bills objectives regarding indefinite detention for administrative purposes as unlawful, when there is no real prospect of a person’s removal from Australia becoming practicable in the reasonably foreseeable future, is undemocratic. This finding is unremarkable considering international human rights bodies have described Australia’s system of indefinite mandatory detention as punitive. While restrictions on liberty without findings of criminal guilt may be permissible in limited cases, this should not be the norm, let alone be defined as the cornerstone of refugee policy.
2. The need for transparency and accountability to achieve effective democracy
In the attempt to pass the Bill, political gain was prioritised by the Government and the Opposition, in a race to sink the most ‘hardline’ policy rather than rise to effective governance through considered policy. The Bill passed the House of Representative in just over two hours, reducing the ability of legislators and parliamentary committees to meaningfully engage with the Bill and the relevant members of the Executive. The consultation window in which we are responding to this inquiry is similarly truncated. As we stand, there is no justification for legislation which trespasses on personal liberties and human rights - specifically of those who are already collectivised as minorities in Australia - to not be subject to a high degree of parliamentary scrutiny. This ultimately represents a pattern of behaviour by the Government following NZYQ as a multitude of rushed changes to the migration legislative framework have occurred outside of normal processes. The lack of democratic transparency is neither effective nor appropriate as a representative body of Australian society.
3. Community Safety through good policy
While we commend the Government on its commitments to the safety and interests of the Australian community, rushed legislation (lacking any benefits that can be gained from consultation with affected communities) and a derogation of civil liberties is not the way to follow through on this commitment.
We suggest that the Government should be taking this opportunity in the wake of the NZYQ decision to form a balanced, thoughtful, and comprehensive policy for immigration, supported by adequate community consultation and parliamentary scrutiny, and that is appropriately aimed at addressing the issue of concern of individuals not returning to their countries of origin in certain circumstances. It is in the interest of the Australian community for the Government to adopt a policy which genuinely manages risk, maximises the reintegration of non-citizen offenders, supports migrants in the community, safeguards human rights and review mechanisms, and is efficient form a cost perspective.
Read our submission here.
