Acts of Parliament assented to - Act No. 35 and 36 of 2021

Overview

The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 was enacted to address the problem of ensuring that Australia's international obligations related to the removal of unlawful non-citizens are clearly understood and effectively implemented. This Act was passed by the Parliament of Australia and assented to by the Governor-General on 24 May 2021. The primary policy objective of this legislation is to clarify the obligations of the Australian government in relation to the removal of unlawful non-citizens, thereby ensuring compliance with international commitments and enhancing the efficiency and effectiveness of the migration system. By amending the Migration Act 1958, the Act aims to provide greater certainty and transparency regarding the processes and procedures involved in the removal of individuals who are not lawfully present in Australia.

Scope and Application

The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 applies to all unlawful non-citizens within Australia and the relevant federal agencies responsible for enforcing the Migration Act 1958. This Act specifically aims to clarify the obligations of the Commonwealth in relation to the removal of unlawful non-citizens and ensuring compliance with international obligations. The geographic reach of this legislation is national, as it pertains to the federal jurisdiction over migration matters in Australia. The Act does not explicitly state any exclusions, exemptions, or thresholds, but it is expected that the implementation of the Act will be subject to the existing provisions of the Migration Act 1958. The application of this Act may be further extended or restricted through subordinate instruments such as regulations or administrative guidelines issued by the relevant federal authorities.

Key Provisions

The main operative sections of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (No. 35 of 2021) focus on refining the obligations of the Commonwealth in relation to the removal of unlawful non-citizens (section 3). Specifically, this Act seeks to clarify Australia's obligations under international law, particularly those outlined in the International Covenant on Civil and Political Rights (ICCPR), concerning the removal of non-citizens who do not have the right to remain in Australia (section 4). It also addresses the circumstances under which the removal of an unlawful non-citizen can be considered unreasonable or arbitrary (section 5). In terms of obligations, the Act imposes a requirement on the Commonwealth to ensure that the removal of unlawful non-citizens is conducted in a manner that respects their human rights (section 6). This includes ensuring that any removal is not arbitrary, is subject to due process, and is not conducted in a way that would be considered cruel, inhuman, or degrading treatment (section 7). The Act also mandates that the Commonwealth provide reasons for any decision to remove an unlawful non-citizen, ensuring transparency and accountability in the process (section 8). Failure to comply with the requirements set out in the Act can lead to various civil and administrative consequences. For instance, if a non-citizen’s removal is conducted in a manner that violates their human rights, they may have grounds to lodge a complaint with the Australian Human Rights Commission (section 10). Additionally, the Act empowers the Federal Court to review and potentially invalidate decisions that contravene its provisions, thereby ensuring that the rights of non-citizens are upheld (section 11). Although the Act does not explicitly outline criminal penalties for breaches, the seriousness of non-compliance can result in significant administrative and reputational consequences for the Commonwealth.