Australia recently passed three contentious Migration Amendment Bills. Souniya Dhuldhoya examines how these bills may infringe on refugee rights and undermine international human rights obligations.
In a troubling turn of events, the Albanese government of Australia reached a consensus with the Opposition. It passed three contentious bills in the Parliament–the Migration Amendment Bill 2024, the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2024, and the Migration Amendment (Removal and Other Measures) Bill 2024–marking a concerning shift in the country’s immigration policies. These bills enable the government to impose sweeping travel bans, exercise autonomous deportation powers, and a blatant infringement of the international law principle of non-refoulement. Rushed through Parliament without meaningful scrutiny, these bills place unchecked authority in the hands of the government to determine who qualifies for asylum undermining due process and transparency in the asylum-seeking system.
This article seeks to critically examine the provisions of the Migration Amendment Bill 2024, exposing their far-reaching consequences for refugee rights and Australia’s adherence to international human rights obligations. Through this analysis, I aim to shed light on the broader implications of these regressive policies and underscore the urgent need for a more humane and rights-based approach to migration governance.
The NZYQ judgement
In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court of Australia delivered a landmark judgment that struck at the heart of indefinite immigration detention. The Court held that where there is no real prospect of deportation becoming practicable in the reasonably foreseeable future, continued detention becomes unlawful. This reasoning rests on the principle that detention without purpose shifts from administrative to punitive, violating the constitutional separation of powers enshrined in Chapter III of the Australian Constitution. The judgment marked a significant departure from the earlier precedent set in Al-Kateb v Godwin, where the Court upheld the validity of indefinite detention even when deportation was not feasible.
Following NZYQ, the ruling in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs provided further clarity on the constitutional limits of executive power. The Court scrutinised harsh conditions imposed on individuals—such as monitoring devices and curfews—and held that such measures are inherently punitive. As punishment lies within the exclusive domain of the courts, these executive-imposed conditions were found to violate the separation of powers doctrine.
These judicial decisions prompted the introduction of the Amendment Bills in Parliament, aimed at reversing the impact of this judgment. These bills seek to grant expanded powers to the authorities, fundamentally altering the framework for immigration laws in Australia.
The Migration Amendment Bill 2024
As the first of the three bills introduced in Parliament, the Migration Amendment Bill 2024 seeks to amend the Migration Act 1958, which has long served as the cornerstone of Australia’s immigration and visa framework. The stated purpose of this amendment is to bolster removal arrangements for immigrants, granting the government the authority to engage in “third country reception arrangements” with foreign nations. These provisions enable the deportation of non-citizens to third countries, raising serious concerns over the principle of non-refoulement. The principle of non-refoulement, enshrined in Article 33(1) of the Refugee Convention, prohibits returning asylum seekers or refugees to countries where they may face persecution, torture, or threats to their life. Recognised as a jus cogens norm—a fundamental principle of international law from which no derogation is permitted—this safeguard is vital to the global protection framework for refugees. By allowing deportations to third countries, the amendment risks violating this principle, undermining Australia’s commitments under both the Refugee Convention.
Australia currently maintains a third country arrangement with Nauru, However, Schedule 5 of the Bill introduces proposed section 198AHB, which authorises the Commonwealth country to make payments to foreign countries under these arrangements. While the Bill explicitly states that the Commonwealth itself cannot exercise restraint over an individual’s liberty within these arrangements, it permits the third country to do so. This practice effectively circumvents accountability by enabling the detention or restriction of asylum seekers in third countries, often in conditions that may not meet international human rights standards.
Moreover, Divisions 7 and 8 of Part 2 of the amended Migration Act empower authorities to mandatorily detain and remove individuals without valid visas from Australian territory. There are no clear policies or safeguards in the Bill or the Explanatory Memorandum to ensure that people sent to third countries are not subjected to human rights violations or returned to their home countries where they face persecution.
Disclosure of Personal Information
Schedules 3 and 4 of the Bill grant the government extensive powers to collect, use, and disclose personal information—including criminal history and spent convictions—overriding existing Commonwealth, state, and territory protections. Subject to specific exclusions, the existing legal framework ensures that when a conviction for an offence is deemed spent, the individual is no longer required to disclose the conviction. Furthermore, others are prohibited from disclosing the conviction or considering it without the individual’s consent. However, Proposed Section 501M (Item 1 of Schedule 3) seeks to override these established protections, even where Commonwealth, state or territory laws would otherwise prohibit such collection, use and disclosure. Not only this, it permits the disclosure of this information to external entities, including foreign governments. This is deeply concerning as it undermines the fundamental right to privacy, which is safeguarded under international human rights law. As enshrined in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the Universal Declaration of Human Rights (UDHR), individuals are entitled to protection from arbitrary interference with their privacy, family, home, or correspondence.
For refugees, this legislation carries devastating consequences. It risks weaponising their past circumstances to justify visa cancellations, deportations, and stringent immigration measures.
Ultimately, this legislation signals a disturbing shift in migration governance, where efficiency is prioritised over fairness, and vulnerable individuals are treated as disposable. It calls into question Australia’s commitment to upholding principles of justice, transparency, and compassion—values that must remain at the forefront of any humane immigration system.
All articles posted on this blog give the views of the author(s), and not the position of the Department of Sociology, LSE Human Rights, nor of the London School of Economics and Political Science.
Image credit: Thomas Meier