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Migration Amendment (Clarifying International Obligations for Removal) Act 2021

10 June 2021 
 

The Law Council provided a proactive submission to the Hon Karen Andrews MP, Minister for Home Affairs, on the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Migration Amendment Act), which commenced on 25 May 2021.

Among other amendments, the Migration Amendment Act amended section 197C of the Migration Act 1958 (Migration Act) to expressly state that a migration officer is not required or authorised to remove a person to a country if a protection finding has been made for the person with respect to that country.

The apparent objective of that amendment is to better ensure that the Migration Act operates in a manner which is consistent with Australia’s international obligations in relation to non-refoulement. The Law Council welcomes the amendments to the extent that they assist to achieve that objective.

However, the Law Council also considers that the Migration Amendment Act may increase the likelihood that persons who are found to engage Australia’s protection obligations, but who are refused a protection visa on character or national security grounds, will be subject to indefinite immigration detention.

In its submission, the Law Council proposed further amendments to the Migration Act to ensure greater consistency with rule of law principles and Australia’s international obligations, particularly in relation to persons detained in those circumstances. The Law Council considers that there is an opportunity now to review and enhance the immigration detention scheme provided for by the Migration Act and has offered to work with the Australian Government to achieve this.

The Law Council is grateful for the assistance of the Federal and Litigation and Dispute Resolution’s Migration Law Committee and its National Human Rights Committee in drafting this submission.
 

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