Coalition of legal experts sound alarm over new laws they fear will lead to indefinite detention of refugees

A coalition of legal experts is voicing alarm over new laws they claim would give the government the power to indefinitely detain refugees.

But Immigration Minister Alex Hawke has defended the reforms as necessary to ensure detainees are not forcibly removed in breach of Australia’s international obligations.

The Migration Amendment Bill 2021 was quickly passed through Parliament on Thursday after debate was cut short in the Senate. 

The new laws are directed at unlawful citizens in immigration detention who have had visas cancelled but who cannot return to their home countries because of a risk of persecution or serious harm.

The government has the power to cancel visas of non-citizens on character grounds as well as for criminal convictions, or if they are considered part of a group suspected of wrongdoing.

The bill’s intended effect is to amend the Migration Act to ensure it does not require the removal of these unlawful non-citizens to their home country if they are considered to be at risk of harm.

It comes after a Federal Court case against the government in September last year determined it had unlawfully detained a Syrian refugee because it had failed to make arrangements for his deportation.  

The new laws are a direct response to the court verdict, which has placed a spotlight on the long-term detention periods that detainees can face in Australia’s immigration system.

Human Rights Law Centre director David Burke is concerned the broad powers contain no mechanisms to prevent the indefinite detention of refugees.

“What we are concerned about is that this legislation exposes the willingness … to leave people languishing in detention long-term,” Mr Burke told SBS News.

“The government should not have the power to lock people up for potentially the rest of their lives without any safeguards.” 

The new laws have invoked widespread concern – with a coalition of 27 legal groups and practitioners putting out a statement in protest.

They argue the laws increase the risk that refugees will be detained indefinitely without adequate judicial review.

Their statement expresses concern that this is contrary to international law and practices in other democratic countries, which impose statutory time limits on immigration detention.

The new laws also give the minister the power to withdraw a person’s refugee status recognition, according to legal experts concerned over the measure.

“We are extremely concerned about an entirely unnecessary new power for the minister to overturn someone’s protection finding,” Mr Burke said.

A spokesperson for Mr Hawke said the laws were not created to redesign the country’s immigration detention framework.

“The government takes its international obligations very seriously, and has a long-standing policy to not forcibly remove an unlawful non-citizen in breach of Australia’s non-refoulement obligations,” the spokesperson told SBS News in a statement.

“The amendments are designed to ensure that detainees are not required to be removed in breach of Australia’s international protection obligations.”  


The legislation could be applied to 21 refugees already in immigration detention who have either been convicted of serious offences or flagged by ASIO as security risks.

However, legal advocates have warned its application could be far further reaching.

In 2014, an asylum seeker know by the pseudonym AJL20 had his visa cancelled on “character” grounds under section 501 of the Migration Act because of a criminal conviction as a teenager.

He was not able to be sent back to Syria because of the risk he would face persecution there.

The Federal Court case last year determined he should be released from detention because he was unable to be deported.

The new law would essentially allow the government to indefinitely detain refugees such as AJL20. 

Australian Lawyers Alliance spokesman Greg Barnes said there was a risk the laws would lead to “completely inhumane indefinite detention.”

“It amounts to detention without trial and is a gross breach of Australia’s human rights obligations,” Mr Barnes said.

The laws were passed in the Senate on Thursday with the support of Labor members. The Greens were opposed to the measure.

Greens Senator Nick McKim told the Senate the legislation undermined Australia’s protection obligations to refugees.

“This bill will lead to more refugees languishing in immigration detention in Australia,” Mr McKim told the Senate on Thursday.

“This legislation will have serious impacts for the visa cancellation process particularly for refugees who may face cancellation for minor incidents.” 

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