Parliament swaps harm of indefinite detention for another
Refugee Advice & Casework Service (RACS) is concerned about the human rights ramifications of provisions in the Migration Amendment (Bridging Visa Conditions) Act 2023 (the Act), which was rushed through Federal Parliament yesterday. Several of the measures introduced by the Act are draconian and significantly encroach on people’s right to liberty.
Last week’s High Court ruling in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor found that indefinite immigration is unconstitutional, overturning the decision made in Al-Kateb v Godwin in 2004. This landmark decision rightly brought Australia in step with international standards for human rights, which have always found indefinite detention to be unlawful.
“Before the reasons for the High Court decision have even been published, this rushed legislation endeavours to swap the harms of indefinite immigration detention with protracted criminal sanctions,” said Alison Ryan, RACS Acting Principal Solicitor.
RACS is deeply troubled that people released from immigration detention would be subject to strict parole-like conditions for life, even if they have never been convicted by a court or have already served a sentence handed down by an Australian court. Australians expect that citizens convicted of a crime would have a reasonable opportunity to be reintegrated into society after serving a fair sentence imposed by a court. We must not impose a double standard whereby the human rights of non-citizens are compromised.
Among the most concerning provisions of the new law are:
The introduction of restrictive visa conditions including curfews and the use of monitoring devices;
Rather than a court or independent panel, these conditions are imposed by an officer of the Department of Home Affairs;
The presumption that these restrictions be imposed, and the absence of review mechanisms for their imposition; and,
Penalties with a mandatory minimum of one year and maximum of five years imprisonment or $33,000 or both for non-compliance with some of the conditions.
“It is unprecedented for Australia to criminalise breaches of visa conditions in this way,” Ms Ryan said.
The highest court in Australia has ruled that the indefinite detention is not lawful or constitutional. The people impacted by the decision in NZYQ cannot be removed to a third country, and they cannot be detained.
Ms Ryan said, “This is deeply troubling and a disproportionate response to the decision in NZYQ. Rather than imposing extrajudicial sanctions, we must support their rehabilitation and reintegration into the Australian community where appropriate. Reducing the risk of recidivism in this way is very much in the interests of community safety.”
RACS calls upon the Australian Government to respect the ruling of the High Court and review the harsh provisions of the Act to ensure it protects the human rights of those affected.
MEDIA ENQUIRIES: Hsu-Ann Khoury, hsuann.khoury@racs.org.au