There was an old lady who swallowed a fly: progressively more troubling amendments to the Australian Migration Act

ABSTRACT The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 sought to remedy failures of previous amendments contained in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Despite both amendments, the Migration Act 1958 continues to provide for the indefinite detention of non-citizens, an existing human rights concern which the later amending legislation had sought to address. This paper illustrates how the enactment of these amendments constitutes poorly conceived quick fixes that exacerbate rather than remedy Australia’s breaches of international obligations. Akin to the oft repeated nursery rhyme ‘there was an old lady who swallowed a fly’, then a spider to catch the fly, and a bird to catch the spider, the series of amendments discussed fail to address the initial problem—indefinite detention—while each exacerbates that failure with increasingly complex yet ineffective solutions. This paper argues that amending the fundamental failure of the Australian Migration Act to offer protection to non-citizens owed non-refoulement obligations requires more than changes to s 197C introduced in later amendments. It requires changes to the ‘good character’ provisions contained in ss 36 and 501 to ensure that individuals owed non-refoulement obligations by Australia are granted protection visas.