Australia Migration Amendment (Clarifying International Obligations for Removal) Act 2021: A case study in the importance of proper legislative process
The following article was written by Sangeetha Pillai, a constitutional lawyer and a Senior Research Associate at the Kaldor Centre for International Refugee Law. It was published by Australian Public Law on 10 June 2021.
On 13 May 2021, the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)(‘Clarifying International Obligations Act’) was passed by both houses of federal Parliament, with bipartisan support. Its enactment was met with critique from refugee sector organisations, and defences from parliamentarians who voted for the law. It also attracted some media attention.
Unlike other significant laws, which are usually placed on the public’s radar before they are debated in Parliament, you probably didn’t hear anything about this one until after the fact. No public inquiry or formal consultation process was undertaken prior to this law being enacted. This is somewhat unusual. Typically, significant bills are referred to an inquiry, conducted by one of several parliamentary committees. This allows stakeholders, experts and members of the public to make submissions engaging deeply with the proposed legislation and drawing attention to effects or consequences that may have gone unnoticed during the drafting process. The inquiry stage is a forum for a genuine dialogue between legislators, those who will be affected by the laws they are deciding whether to pass, and those in whose names new laws are passed. It has helped many laws to be refined so that they better achieve Parliament’s goals, or so that they avoid unforeseen negative effects.
The lack of a meaningful dialogue around the Clarifying International Obligations Act is palpable. Drastically different views on how the Act will function and its likely effects have been expressed by Coalition and Labor members on the one hand, and refugee and migration law specialists on the other. The new amendments to the Migration Act 1958 (Cth) are complex, and they fit within a statute that is over 1,000 pages long. This creates a high risk that, if consultation with a broad range of stakeholders is skipped, important context will be missed by drafters.
Missing important context appears to be exactly what has happened here. The Clarifying International Obligations Act is a piece of legislation which pursues the unobjectionable goal of protecting people from being returned to countries where they would be at high risk of harm, but in a manner that is deeply flawed. [Read more here.]