Canada’s Implementation of Australian Immigration Detention Legislation

Abstract

Since 2010, Canada has moved to implement three elements of migration policy that have existed in Australia for some time. Canada has proposed the introduction of provisional partner visas, which will require the holder of a spouse visa to remain in the relationship for two years in Canada before permanent residence can be granted (subject to exceptions for family violence and other matters beyond the control of the applicant). Canada’s regulation of the immigration advice profession mirrors Australia’s regulatory system closely. Finally, and most controversially, Bill C-4 of 2011 will, if enacted, bring in a form of mandatory immigration detention that closely follows Australia’s first mandatory immigration detention laws, which were enacted in 1992. This paper compares Bill C-4 with the Australian Migration Amendment Act 1992, and demonstrates the considerable resemblance between them. I will then discuss the likely future of the Canadian legislation, which I will argue is likely to be significantly different to the fate of the Australian legislation, which was found to be constitutionally valid by the High Court of Australia in Lim v Minister for Immigration, Local Government and Ethnic Affairs, although contrary to Australia’s international obligations in the UN Human Rights Committee opinion in A v Australia. Bill C-4, on the other hand, would be very likely to be found to be in breach of the Charter, especially given the precedent of Charkaoui v Canada (Citizenship and Immigration). Finally, I ask whether Canada, in a practical sense, even needs Bill C-4, given the fact that only two boats of unauthorised arrivals have reached Canada since the election of the current government in 2006.

Key words: Immigration law; Constitutional law; Comparative administrative law