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Many thanks for taking the time to hear from us today. I would also like to acknowledge that I am giving evidence on the sovereign, unceded land of the Bidjigal people and pay my respect to elders past and present.

The Kaldor Centre is the world’s leading research centre dedicated to the study of international refugee law.

I would like to start by expressing concern regarding the rushed nature of this process. This is the fourth bill that has been introduced since NZYQ – in 12 months. That case brought us into line with all other comparable countries around the world: no other liberal democracy allows for, let alone requires, indefinite mandatory immigration detention. Since then, there have been two major High Court cases challenging the government’s responses to that case – the Commonwealth won one and lost one, but even with the case that it won, there was a carve out for the position of the intervenor. There is a real need for the government to take time to develop a comprehensive immigration policy, that complies with the Constitution and our obligations under international human rights law and international refugee law, in consultation with affected communities, legal experts and the sector, instead of repeatedly adopting a rushed response to highly complex issues.

In terms of the content of the bill, the Kaldor Centre’s concerns focus on two main points: firstly, the introduction of third-country reception arrangements, which could lead to so-called chain refoulement and put Australia in breach of its international obligations. Australia’s non-refoulement obligations require it to both refrain from sending someone back to a risk of harm, as well as from sending them to a third country that may itself send them to a risk of harm. This is sometimes referred to as “chain refoulement”.

The second focus of our comments today is the proposed civil liability immunity provisions. We are also deeply troubled by expanding powers to revisit protection findings, and reintroduction of intrusive monitoring conditions for people released from immigration detention, and we address those issues in our forthcoming submission.

All of these provisions are likely to lead to lengthy and complex litigation, creating even more legal uncertainty.

The bill would allow the government to send people who do not have a visa, but cannot be removed, to unspecified third countries. Unlike the existing regional processing provisions, there is no legislative protection from refoulement for people removed to a third country, meaning chain refoulement is a real risk, and there is no clarity in the bill or accompanying documents that durable solutions might be found.

The bill explicitly envisages that people removed to third countries could be detained. It also anticipates sharing criminal histories with third countries without any safeguards to prevent those histories being shared in a way that could harm the affected person. There is no requirement that such people pose a risk to the Australian community before they could be subjected to removal.

Similarly, there is no requirement that risk assessments be conducted to assess the potential impact of removal on that individual, despite Australia being aware that third-country processing or resettlement can be particularly harmful for certain cohorts, including those with pre-existing mental illness, women and sexual minorities. Some people liable to removals under this bill have been in Australia for many years and have built lives here. These removals could also have devastating impacts on their families and communities left behind in Australia, including children.

The bill also contains proposed civil liability immunity for actions taken by the Commonwealth or Commonwealth officers to effect removals to third countries or things that are done in those third countries. Civil liability claims have been the primary safeguard for people removed from Australia for regional processing in the past. Immunity from such claims would mean Australia could operate with near impunity, so long as its officials operated in, “good faith”, which is undefined. Severe harm could be done as a result.

For all of these reasons, we propose that the bill be rejected in its entirety.

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Anna Talbot appeared before the Senate Legal and Constitutional Committee .on 21 November.

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