Zali Steggall (Warringah, Independent) Share this | Hansard source

This bill, the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025, is incredibly problematic, as I commented yesterday in this place in relation to the motion. The motion should have succeeded, and this bill should have been referred to the Parliamentary Joint Committee on Human Rights.

There are great concerns around intervention by government, around ministerial intervention into the judicial system. We have separation of powers for a very good reason in our liberal democracy, and that is to ensure there isn't overreach by the executive branch into decisions. We have the judicial branch there to implement, to ensure we have case law and to ensure that we have elements of natural justice, which includes procedural fairness as a fundamental principle. What is really concerning now is that question of trying to remove it in certain situations where it's simply inconvenient and maybe taking up a little bit too much time from the government's perspective. We have a situation where the High Court has already ruled that in some instances procedural fairness is not required. Why is it necessary for this legislation to go beyond that ruling, to extend it to further cases and to extend it retrospectively? I have a major issue with that aspect.

Ministerial intervention into the judicial system is incredibly concerning. Unfortunately we're seeing it all too often from this government around a number of issues. We have a fundamental judicial right in relation to natural justice and procedural fairness, and this attempt by the government to curtail it is incredibly concerning. I think it's important, because it is so significant, that all of this be very carefully scrutinised and that any unintended consequences be identified. It should be put properly to the Parliamentary Joint Committee on Human Rights.

I understand the government has a problem it needs to solve. The NZYQ decision left a group of people in our community with serious criminal histories, and, while the avenues through the Migration Act have been exhausted, the government now needs to look at other tools to deal with this group of people. It's a community safety issue, it's a political problem, and it gets weaponised all the time by the opposition. Of course I understand there needs to be a solution, but that does not mean you set aside key fundamental principles of our judicial system. So while I support the intention of the government to form a solution, I note there are serious concerns about the impact of this bill. These are not just my concerns. These are concerns being reflected by the legal fraternity and by many who are making submissions and urging the government to step with great care in this area.

Curtailing fundamental and crucial elements of our legal system is seriously not the best way to solve the political problem that they have at the moment. Of course, this has all come about as a result of indefinite offshore detention, which was an incredibly problematic and bad policy for so long. It remains a bad policy of the government. We finally had a High Court judgement that determined that indefinite detention was not legal and could not continue. This should have been a light bulb moment for both major political parties years ago; we finally had a High Court judgement that identified that. Rather than grappling with that question, with what that judgement meant, what we have seen from the Albanese government—in both the 47th Parliament and the 48th Parliament, time and time again—is ways of getting around the decision, of trying to accommodate the decision without fundamentally re-thinking the question around the rights and consequences of indefinite detention.

For Warringah, there is a real sense of the importance of the rule of law. I represent a community that values fairness. The rule of law—procedural fairness—is incredibly important. I've received a lot of correspondence, in the small amount of time we've had on this legislation, from across the electorate, raising serious concerns about the human rights abuses that may occur if this bill is passed. The Pacific solution, as it was once known, posed serious concerns. The Nauru files documented numerous instances of abuse, assault, self-harm and other severe forms of mistreatment and neglect against asylum seekers and refugees held on the island. The government and major parties were complicit in that by endorsing policy that continued it.

We now stand at another crossroads, where we're sending people back to Nauru for, essentially, what appears to be indefinite detention. We don't even know. What we have is an announcement in the media of huge sums of money being spent on a minor group of people, and we simply have no information about their rights. Are we just basically perpetrating more indefinite detention but sending it somewhere else and saying, at great cost: 'It's not our problem anymore. We will hand that problem over to Nauru'?

Back in November 2023, the High Court handed down the NZYQ decision. The court said that indefinite immigration detention isn't constitutional if there's no real prospect of someone being removed in the reasonable foreseeable future. That ruling meant the government could no longer keep certain noncitizens locked up indefinitely. Somewhere between 150 and 300 people had to be released as a result. This was quickly weaponised by the other side, as is the norm when it comes to anything to do with immigration. The group quickly became known as the NZYQ cohort, and some of them—yes—have incredibly troubling and dangerous criminal histories of violent and sexual offences. But that is why we have a judicial system. That is why we take proceedings. That is why we have prisons. We have a system to deal with that.

It left the government in a difficult position, so they've rushed their response and tinkered around the edges a few times. We keep having all these attempts. Every time you curtail trust, the public loses faith that the government actually has a cohesive plan and way of approaching and dealing with this. We've seen bridging visa Rs with strict conditions, ankle bracelets, curfews and regular reporting. Later, though, some of those measures were struck down by the courts, again for being unconstitutional. The government was advised that the legislation will only impact 200-odd people in respect to this one now. But the question is: what are the wide-ranging impacts of this legislation? What are we not aware of? Where is the slippery slope we're on when it comes to procedural fairness and natural justice? I understand that there is a huge amount of litigation in our courts around the Migration Act, and that is problematic, I believe, for the government. But, rather than looking holistically at the scale of the problem, the answer from the government is to set aside cornerstones of our judicial system, and I fundamentally disagree with that approach.

To me, this bill needs to be delicately understood and balanced. We have to find a better balance to ensure we contain strong borders, have domestic security and have a strong judicial system while also making sure we have appropriate consequences for all those that commit serious crimes within Australia, in particular when they are people that have no legal right to remain. But we also have to ensure we have robust and fair processes consistent with our obligations under international human rights law. These are not just things that are nice to respect when it is convenient and that you set aside when it is inconvenient. It's when it is inconvenient that they need to be respected and upheld the most. What I'm so incredibly concerned about with this legislation is that the government is choosing the other path. It is choosing to set aside those cornerstones. What we're seeing all too often is that, when inconvenient judicial decisions are handed down, the government tries to find a workaround. It doesn't want to grapple with the legal principle that a decision was unconstitutional—that the powers the executive government and the policy they implemented were beyond the bounds of the constitution. Rather than tackling that aspect, the government is constantly trying to work around and find a way of ignoring the constitutional question and just tinker around the edges to try and make it work. That is not good governance.

From my point of view, this legislation is deeply problematic. I move the amendment as circulated in my name, which raises these concerns in relation to this legislation. I acknowledge the need to find a solution but the need to respect procedural fairness and natural justice are cornerstones of our justice systems and should absolutely be upheld. We have to make sure that the breadth of this legislation, who will be impacted, the ramifications of the legislation to more groups and visa holders are properly understood and investigated. I intend to move the second reading amendment as circulated in my name, which raises these concerns in relation to the legislation. I acknowledge the need to find a solution, but the need to respect procedural fairness and natural justice are cornerstones of our justice system and should absolutely be upheld. We have to make sure that the breadth of this legislation, who will be impacted and the possible ramifications to more groups and visa holders are properly understood and investigated. I urge the government to ensure that this legislation is properly scrutinised. If not, we are on a very slippery slope of erosion of trust in government and the erosion of a cornerstone of liberal democracy, which is the separation of powers between the executive and our judiciary.

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) acknowledges that the government is looking to find a solution to ensure that people in the NZYQ cohort, who were seeking refugee status and broke Australian laws, are not able to stay in Australia; and

(2) notes that:

(a) procedural fairness and natural justice are cornerstones of our justice system, however this legislation has immense overreach by curtailing the Court's ability to apply these where a decision to remove a person to a third party has been made; and

(b) the ramifications of this legislation will be ongoing, with real-life application for all people on bridging visa E, including those on fast-track and transitory visas".

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