New law making indefinite detention legal is a disgrace that has to be fought

In mid-May, the Morrison government rushed through amendments to the Migration Act that guarantee the government’s power to indefinitely detain refugees, potentially for life. 

The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 also opens up the possibility of deporting refugees to their home countries by giving the Minister power to revoke refugee status, if a refugee’s visa has already been cancelled. 

This is yet another extension of the Coalition’s anti-refugee cruelty. The power to revoke refugee status undermines the concept and practice of refugee protection enshrined in the 1951 Refugee Convention. 

Shamefully Labor voted for these changes, maintaining a 20-year history of bipartisan support for anti-refugee laws. 

Both Labor Senator Murray Watt in his Parliamentary speech on the Bill, and Labor MP Ged Kearney in an email to a constituent, have attempted to provide three justifications for Labor’s support. 


Watt said: “We need to be clear here: if this Bill doesn’t pass then people who are owed protection may be returned to countries where they face persecution.” 

Kearney said: “The main point from the legislation is that the Migration Act no longer says that a refugee can be sent to a country where they face persecution.” 

These justifications are either misinformed or disingenuous. The fact that a Minister now has the power to strip people of their refugee status and then deport them to where they fled from disproves the Watt and Kearney claim.  

Further, the Migration Act section 197C still states: “For the purposes of section 198 [the removal of unlawful non-citizens provision] it is irrelevant whether Australia has non-refoulement obligations …”. It also says in effect that, even if Immigration assesses a person’s proposed deportation as being extremely dangerous, it can still go ahead. Labor should have demanded the repeal of s 197C. 

The latest amendments were in response to the ALJ20 court case. In that case a Syrian refugee was released by the Federal Court  precisely because the government couldn’t deport him back to Syria. The Syrian refugee (ALJ20) had been detained after his visa was cancelled in 2014, under section 501 of the Migration Act, following a criminal conviction. 

The judge found that because the Migration Act says people can be held in immigration detention only for certain purposes; because the purpose in ALJ20’s case was to arrange his deportation; and because the government had admitted it would not be deporting him to Syria, his continued detention was unlawful. The amendments, by “clarifying” that indefinite detention with no prospect of deportation is lawful, aim to prevent any judge in future from making an ALJ20-type release order. 

The wedge? 

Senator Watt claims that the amendments are only about 21 individuals, but several amending clauses make clear that their effects extend beyond the 21. 

The Act as amended won’t affect refugees currently in the community as it only applies to refugees whose visas are cancelled. But the government has broad powers to cancel visas. 

In support of the amendments, Watt repeats the Coalition government’s smear campaign against the 21 people, saying they have spent time in jail, and “we don’t want this cohort of potentially dangerous individuals released into the Australian community”. On that “logic”, would Senator Watt say, in relation to any and all Australian citizens who’ve served time, “we don’t want this cohort of potentially dangerous individuals released into the Australian community”? 

It is an accepted element of the criminal justice system that, if “you do the crime, you do the time”, and then you’re free. Yet the Migration Act allows the government to punish asylum-seekers or refugees by holding people in immigration detention after they have served the time sentenced by a court. It is extra-judicial punishment. 

Ged Kearney says: “… the only option presently available to the Government to avoid refoulement would be to grant these persons a visa and allow them to stay in Australia, even though they fail the character test or have adverse security assessments. So, the Morrison Government presented us with a classic wedge Bill.” 

But there is only a “wedge” because Labor won’t stand up to Coalition smears. In fact it accepts and repeats them. 

The character test is a farce. Any person who is convicted of any offence – no matter how trivial – while they are in immigration detention automatically fails the character test. The refugees who dug an escape tunnel at Yongah Hill detention centre in WA now face indefinite detention if they are found guilty of “property damage”.   

ASIO assessments are also a farce, conducted in secret without appeal rights. Around 60 Tamils who, years ago, were given adverse ASIO assessments, have had them slowly overturned as a result of a campaign to free them and have now been released into the community. 

Didn’t have the numbers? 

Kearney makes an additional claim that it was better for Labor to amend the Bill than just vote No because the government had the numbers and it was going to pass anyway. 

But Labor’s changes are minor; one to review the legislation in two years’ time and another that provides that any ministerial decision to overturn a refugee determination can be appealed. These small changes cannot hide Labor’s latest failure to defend refugee rights.  

By voting No, Labor would have built political opposition to the Bill, and perhaps created enough political fuss to shift some crossbench votes, holding out the prospect of a Liberal defeat. 

By voting No, they would have created a clear line of demarcation between Labor and the Coalition and sided with the refugee movement that was unanimous in its opposition to the amendments. 

Even by their own electoral logic, Labor’s betrayals simply dismay their own supporters and give the impression that Labor doesn’t stand clearly for anything.  

Rescind the Migration Act Amendments and free the refugees 

ALJ20 was the first decision since the Al-Kateb case (when the High Court backed indefinite detention for “administrative” purposes in 2004) that had provided some hope that the courts had finally found there were limits to detention. 

The new Migration Amendment (Clarifying International Obligations for Removal) Act 2021 crushes that hope. Indefinite detention is now etched into the Migration Act. Fighting to rescind these amendments will be important for the refugee movement. 

The amendments won’t impact directly on the legal cases of the Medevac refugees who are still in detention. But they show that we can’t rely on parliament or the courts to provide justice for refugees. That places even more importance on continuing to build protests and the wider refugee movement in order to free the refugees.