The NSW Council for Civil Liberties (‘NSWCCL’) welcomes the opportunity to make a submission to the Parliamentary Joint Committee on Intelligence and Security regarding its review of the operation, effectiveness and implications of the amendments made to the Migration Act 1958 (Cth) (‘Migration Act’) by Schedule 1 of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth) (‘Clarifying Act’).

The Clarifying Act claims to support Australia’s international non-refoulement obligations by amending the Migration Act to clarify that it does not require or authorise the removal of a person who is deemed an unlawful non-citizen and for whom a protection finding has been made through the protection visa process.

However, NSWCCL is deeply concerned that by operation and effect, the Clarifying Act subjects a person captured by the laws to ongoing mandatory immigration detention, without any time limit or safeguards to prevent prolonged or indefinite detention.

NSWCCL is equally concerned that the new laws have implications for Australia’s other extant international obligations, i.e. not to subject any person to torture or to cruel, inhuman or degrading treatment or punishment, and not to limit a person’s right to liberty, particularly in respect of children

NSWCCL firmly supports the abolition of prolonged and indefinite detention. For the purpose of the Committee’s review, NSWCCL submits that:

(1) no Australian law should allow for the prospect of prolonged or indefinite detention. The Clarifying Act must be urgently addressed  to remove this consequence;

(2) absent any safeguards that ensure persons captured by the laws are not exposed to mandatory prolonged or indefinite detention, the Clarifying Act is entirely disproportionate;

(3) the Clarifying Act does not ‘clarify’ Australia’s international obligations and instead further threatens fundamental principles of international human rights law to which Australia is bound;

(4) the migration laws must ensure that those affected by the Clarifying Act are not at risk of ill-treatment, and the length of detention imposed is compatible with the right to liberty, the rights of children, and the prohibition against torture or other forms of cruel, inhuman or degrading treatment or punishment; and

(5) it is entirely inadequate to rely on ministerial intervention, through discretionary, non-compellable and non-reviewable powers, to safeguard fundamental human rights principles.

For more information, read our full submission.