Kate Chaney (Curtin, Independent) Share this | Hansard source

I move:

That the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 be referred to the Parliamentary Joint Committee on Human Rights for consideration and an advisory report.

I rise today to highlight significant concerns about the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 that justify referring this bill to the Parliamentary Joint Committee on Human Rights. This bill has been introduced in response to the High Court's NZYQ decision and the challenges that have followed. The government has been clear about its aim to expedite the removal of noncitizens who have exhausted all options to remain in Australia.

I understand the government's concern. The NZYQ decision has left us with a group of people in the community who have serious criminal histories, and the government needs tools to deal with them quickly. I support the intention to manage that group in a way that protects the community, but there are serious question marks about whether this bill is the best way to do that. It retrospectively validates an unknown number of decisions that were based on an incorrect interpretation of the law. It also provides that procedural fairness doesn't apply at key steps in the removal process, without a proper assessment of whether this is appropriate, and it applies to a much broader group than the up to 300 individuals commonly described as the NZYQ cohort. It could also apply to many who have not committed any criminal offence and who may not have finished exercising their review rights. Some estimates suggest the practical reach could extend to around 80,000 people—well beyond what the public has been led to believe.

The fundamental problem is that parliament does not currently have a clear understanding of the true impact of this bill. We do not know how many people this bill could affect or in which circumstances. For that reason, I do not believe this bill should be rushed through the chamber. That's why I'm moving this motion to refer the bill to the Parliamentary Joint Committee on Human Rights for detailed scrutiny. Before parliament passes a law relating to the application of procedural fairness for large classes of people, we should understand exactly who will be affected, how the powers will operate in practice, and what safeguards are needed to avoid serious error.

Let me step back to explain how we got here. In November 2023, the High Court handed down the NZYQ decision, and the court ruled that indefinite immigration detention is unconstitutional where there's no real prospect of removal in the reasonably foreseeable future. This meant the government could no longer keep certain noncitizens in detention indefinitely, and between 150 and 300 people were released into the community. These people became known as the NZYQ cohort. Some of them had serious criminal histories, including violent or sexual offences. The government scrambled to respond by granting this group visas known as bridging visa Rs with strict conditions—ankle bracelets, curfews and regular reporting. Later, some of those conditions were struck down by the courts as being unconstitutional.

Since then, the government has sought ways to remove this group from Australia. One attempt was to deport three NZYQ members to Nauru. This was contested in the courts, based on the argument that the government had not applied the principle of procedural fairness. Earlier this year, the TCXM case found that procedural fairness did not apply to exercises of executive power like these, where a government is dealing with another government on behalf of an individual where a decision has already been made to deport them. This decision may be appealed in the future, but this bill aims to deal with this issue to limit further appeals.

It appears that the government is trying to do two things with this bill: firstly, retrospectively fix any decision that was made before NZYQ, based on the erroneous belief that indefinite detention is legal; and, secondly, ensure that procedural fairness doesn't apply to certain types of executive power related to the removal of noncitizens, in line with the TCXM decision. By seeking to validate past removal decisions that might now be unlawful in light of the NZYQ court decision, this bill would remove the right for individuals to have their decisions remade based on a correct interpretation of the law.

On procedural fairness, the bill makes it clear that the intention of the parliament is that procedural fairness does not apply in a set of specific powers used for deportation—namely, collecting, using and disclosing information to foreign countries—for example, sharing information about a potential migrant with a foreign country in preparation for deportation; collecting, using and disclosing criminal history information—for example, sharing criminal history information with a series of government officials in order to arrange for deportation; coming to arrangements with foreign countries to receive our deportees—for example, buying a Nauru visa for a migrant; and giving directions to a migrant to perform certain activities to facilitate their own deportation—for example, directing a migrant to purchase a passport.

Procedural fairness is a simple concept that forms a fundamental safeguard in our legal system. When government is making a decision that will adversely affect a person, the person should be told, shown the evidence and given a fair chance to respond. If a person is set to be deported, the government can make all the arrangements overseas, such as negotiating a visa or entry into another country, without telling the person. That person will then be legally required to comply with directions, without any right to respond, even if the arrangements are mistaken, impractical or harmful.

I have four main concerns with this bill which I think need to be considered by a committee. My first concern relates to the retrospective validation of unlawful decisions. The bill validates past visa decisions that may now be unlawful following the NZYQ decision. Retrospective lawmaking is always problematic. It undermines confidence in the rule of law when parliament steps in to rewrite the legality of past actions. People who may have had valid grounds to challenge decisions will lose that opportunity. The way the law works, if a court interprets the law in a particular way, that's seen to be the way the law always was. So, decisions made based on a previous, erroneous understanding of the law are then invalid. Changing the law retrospectively to declare decisions valid even though they were made based on an erroneous understanding of the law undermines this legal principle, and we should be very cautious before endorsing such a step. The minister has made visa decisions based on a series of factors, one of which was the belief that indefinite detention was legal. If this is not the case, those decisions are invalid. This is my main concern with the bill and the main reason this should be referred to a committee. When we're talking about decisions that deal with such fundamental issues as individual freedoms, we should not just paper over the cracks.

My second concern is that the bill declares that procedural fairness doesn't apply to these types of executive actions. While this may confirm the law as it exists right now, based on the finding of the TCXM case, any law that limits procedural fairness should be considered very carefully and with proper scrutiny. Changing the application of procedural fairness strikes at the heart of our legal system. For centuries, our legal system has recognised that there are moral and philosophical concepts of fairness that are pretty universal. In the last 50 years, this has been articulated as a more specific concept of procedural fairness. Procedural fairness is not about giving people endless rights of appeal. It's about something much simpler: ensuring people have the chance to know what's being decided about them and to respond. Procedural fairness upholds the integrity, transparency and accountability of decision-making processes, especially in government and administrative contexts. It protects individual rights, which is especially important when decisions have serious personal consequences—like they do if we're deporting someone to a country they have no connection with—and it promotes trust in institutions. People are more likely to accept outcomes, even unfavourable ones, if they believe the process is fair.

Exempting procedural fairness removes basic safeguards such as the right to be heard or to challenge adverse evidence. This undermines public confidence in the fairness of government decision-making and increases the risk of factual errors or bias. Not allowing procedural fairness may be in breach of our obligations under international law, including the International Covenant on Civil and Political Rights and the Convention Relating to the Status of Refugees. Imagine being told you're to be deported to Nauru immediately. The government has already shared your personal information with the Nauru government and purchased a visa on your behalf. You might have children at school here. You might be caring for a partner with a serious illness. You might even be the wrong person, because of an administrative error. Under this bill, none of those matters could be raised as a matter of procedural fairness. You'd be legally obliged to comply with directions, and the government would be not required to hear your side.

Following a Federal Court decision this year, the courts may have already found that procedural fairness doesn't apply to these particular powers. In that case, what's the rush? There's time to send this to a committee for proper scrutiny. If there is any doubt about the application of procedural fairness—which, presumably, there is, or the government would not be introducing this bill—then it deserves scrutiny. I'm not arguing that procedural fairness should never be removed from certain legal powers, but I believe that we always need proper scrutiny of the impacts when dealing with such a fundamental legal right.

My third concern is that, while the government says this bill is aimed at the NZYQ cohort, its scope is far wider. The bill largely applies to removal pathway noncitizens. This includes people on bridging visa R, the specific visa for the NZYQ group, but also many people on bridging visa E and potentially people without visas. That's a much larger population. Previous Senate estimates found that this could apply to over 80,000 people rather than just the 300-odd in the NZYQ cohort. It also appears to apply to migrants who still have legal pathways to remain in Australia, contradictory to the government's claims. Some of this bill goes even further, to an even wider range of migrants. If we're going to pass a law that makes it clear that no procedural fairness applies to such a large number of people, it deserves scrutiny.

Finally I'm concerned by the rushed nature of this bill. It was introduced last week without clear consultation and will likely be debated and passed tomorrow. The government is clearly desperate to deal with the NZYQ cohort. This is reflected in the eye-watering sums of money that the government is reportedly paying Nauru to accept these people. The Guardian has reported that the government has agreed to deport to 280 members of the NZYQ cohort to Nauru, compensating Nauru with a $400 million upfront payment and annual payments of $70 million a year. That's $1.4 million per individual, with an annual payment per individual of $250,000. It is essential that we deal with this cohort of people quickly and safely. Based on the TCXM case, procedural fairness has already been found, at least in the first-instance decision, not to apply to the exercise of executive power needed to remove the problem of this cohort to Nauru. If it's not needed, then what's the rush? Let's go through a proper process. The fact that this bill is being introduced rather than the TCXM decision being relied upon indicates that there may be some doubt about the application of procedural fairness. If there's doubt, we should be treading very carefully. The retrospective legalisation of all decisions made based on an erroneous understanding of the law deserves scrutiny rather than haste. This is a complex area of law intersecting with constitutional principles, international obligations and human rights. It should not be rushed. Parliament works best when we take the time to scrutinise legislation carefully, especially when fundamental rights are at stake.

Concerns about the bill are shared by a number of groups that look deeply at these types of issues, including the Human Rights Law Centre, the Asylum Seeker Resource Centre, the Refugee Advice & Casework Service and Liberty Victoria. Given these concerns, I believe this bill should be referred to the Parliamentary Joint Committee on Human Rights for consideration. The committee should consider, amongst other things, the number of visa decisions that may be affected by the original NZYQ court case and the implications for individuals of retrospectively validating these decisions, as opposed to allowing them to be reviewed; whether it's appropriate and justified to affirm the TCXM decision that procedural fairness does not apply in circumstances like this; and the potential impact of the bill beyond the NZYQ cohort. That scrutiny would give parliament the confidence to pass legislation that is precise, targeted and fair rather than broad and rushed.

I would also like to see the bill reviewed by the Senate Standing Committee for the Scrutiny of Bills. Let me be clear. I understand the government's desire to deal quickly with the NZYQ cohort. Community safety is paramount, and we must have tools to remove people with violent criminal histories when they have no right to remain here. But, as legislators, we have a duty to make good law not just fast law. We need to balance security with fairness and efficiency with accountability. That's why this bill should go to committee. We owe it to the Australian public and to those affected by these laws to get it right.

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