The Albanese government has introduced a bill to facilitate removal of non-citizens from Australia, including paying third countries to accept people released from immigration detention, triggering cancellation of their bridging visas and possible re-detention.
The home affairs minister, Tony Burke, introduced the bill to “strengthen the government’s power to remove people who have had their visas cancelled to third countries” on Thursday.
According to its explanatory memorandum, the bill authorises the government to pay a third country to accept unlawful non-citizens from Australia, such as the 224 people released as a result of the high court’s November 2023 NZYQ decision that indefinite immigration detention is unlawful.
If a third country agrees to accept an unlawful non-citizen, the minister “is required” to issue the holder of a bridging visa R [BVR] a notice of their permission to go to a foreign country, a “ceasing event” which then triggers the termination of their BVR.
“If a person becomes an unlawful non-citizen due to the cessation of a [bridging visa R] … the person may be taken into immigration detention under section 189 of the Migration Act, and may be liable to be removed under section 198 of the Act,” the memorandum said.
“In certain circumstances, if a foreign country that is a party to a third country reception arrangement has granted permission for the person to enter and remain in that country, there would then be a real prospect that the person may be removed to that country under section 198 in the reasonably foreseeable future.”
The government privately says that the bill will help address the problem of non-citizens refusing to be resettled in New Zealand, which agreed to accept up to 450 refugees from Australia.
But by creating a new pathway for removal for non-citizens on BVRs, the bill could authorise the re-detention of the more than 200 people released as a result of the NZYQ high court decision.
As the high court found in ASF17 that refusal to cooperate with removal renders detention lawful, this could see people re-detained indefinitely if they refuse to go to the third country.
Burke told the House of Representatives the new powers would be exercised “in accordance with our international non-refoulement obligations”. The bill also establishes immunity provisions so that officers “are not liable under Australian law in respect of civil claims” where they have acted in good faith.
The government also wants to reimpose ankle bracelets and curfews on some people released from immigration detention by legislating that the conditions are no longer the default, reversing amendments pushed by the Coalition and accepted by Labor.
On Thursday, Burke made new regulations to regain the power to impose the conditions “only if the minister is satisfied” that the bridging visa holder “poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence”.
That responds to Wednesday’s high court decision that the existing regulations breached the separation of powers and amounted to punishment.
The YBFZ decision is set to temporarily result in 150 non-citizens no longer being electronically monitored and 130 having their curfew lifted. A further 27 will have charges dropped for alleged offences of breaching visa conditions, and two who were convicted may now have those overturned.
The government has already enacted the new regulations, but has also introduced a bill to increase its powers to remove non-citizens from Australia, including a new proposed immunity from civil claims.
Burke told the House of Representatives that ankle bracelets and curfews “are designed to protect the community, not as a punitive measure”.
Burke took aim at the Coalition, noting that the provision that ankle bracelets and curfews were the default “was actually not in the original bill” introduced by Labor but “became part of amendments agreed to between the government and opposition”.
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In May, lawyers for the plaintiff in the YBFZ high court case cited the fact the harsh visa conditions were the default as part of their successful challenge.
According to its explanatory memorandum, the new regulation introduces a “confined and specific test … related to protecting any part of the Australian community from serious harm”.
“The new test requires consideration of the risk of particular criminal conduct occurring and the nature, degree and extent of harm the [bridging visa R] holder may pose to any part of the Australian community,” it said.
Four visa conditions – financial and debt reporting, ankle bracelets and curfews – can now only be imposed “if the minister is satisfied on the balance of probabilities that the BVR holder poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence”.
Serious offences include those punishable by imprisonment of at least five years and involving loss of life, serious personal injury, sexual assault, child abuse material, child sexual offences, family or domestic violence, inciting violence, or people smuggling or human trafficking.
The minister must also be “satisfied that the imposition of the condition(s) is, on the balance of probabilities, reasonably necessary, and reasonably appropriate and adapted for the purpose of protecting any part of the Australian community by addressing that substantial risk”.
The explanatory memorandum said the new regulation clarified the “protective purpose” of the visa conditions “by referring to an objective way of demonstrating whether the offences that the minister is concerned with are serious or not”.
“This is in contrast to the way the invalid provision had purported to operate previously, which was that the minister was required to impose the conditions unless satisfied that the imposition of the conditions were not reasonably necessary to protect any part of the Australian community.”
Burke told the House of Representatives the regulation necessitated amendments to the Migration Act, to allow non-citizens to make representations to the minister not to impose an ankle bracelet or curfew.
Introducing the bill, Burke said it must “go through within a reasonable time” but “does not have to be rushed through this week”.
Guardian Australia contacted Burke and the prime minister’s office for comment.
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