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

It appears that the government is trying to do two things with the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025. Firstly, it's trying to retrospectively fix any decision that was made before NZYQ based on the erroneous belief that indefinite detention was, at that time, legal. Secondly, it's trying to 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.

I have four main concerns about this bill. My first concern is about the retrospective validation of unlawful decisions. As a rough estimate, there could be a hundred decisions made before the NZYQ decision that this could affect, where applicants may be hopeful that a reconsideration of their case could deliver a different outcome. The Minister for Home Affairs 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, then those decisions could be invalid. Changing the law to make these decisions valid retrospectively is convenient, but it's not great law. We should be really cautious before we endorse such a step. That's why I want to see this bill referred to a committee. When we're talking about decisions that deal with such fundamental issues such as individual freedoms, we shouldn't just paper over the cracks because it's expedient.

My second concern is that the bill declares that procedural fairness doesn't apply to certain types of executive actions. Any law that limits procedural fairness should be done carefully and with proper scrutiny. I understand that the people in question have had the chance to be heard, often numerous times before, and to appeal their cases before they get to the point where they're being removed from Australia, but procedural fairness is fundamental. It upholds the integrity, transparency and accountability of decision-making processes, and we shouldn't mess with it lightly. 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. There could be tens of thousands of people covered by this bill who have no right to procedural fairness when the government is taking significant actions that affect their rights. There may be practical reasons why this pathway won't be used much, but I don't think we should pass laws comfortable in the belief that they won't be used. If we are 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 the bill. It was introduced last week without clear consultation and will likely be passed through the House today. The retrospective legalisation of all decisions made based on an erroneous understanding of the law deserves scrutiny rather than haste. The government is clearly desperate to deal with the NZYQ cohort, and this is reflected in the eye-watering sums of money that the government is reportedly paying Nauru to accept these people. After 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 is the rush? Let's go through a proper review process. If there's doubt about whether procedural fairness should apply, then we should be treading very carefully. This is a complex area of law intersecting with constitutional principles, international obligations and human rights, and it should not be rushed.

Parliament works best when we take the time to scrutinise legislation carefully, especially when fundamental rights are at stake. Yesterday I moved a motion to refer this bill to committee, given that it deals with significant individual rights, and I stand by that as the best course of action. I understand the government's desire to deal quickly with the NZYQ cohort. Community safety is paramount, 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. In the absence of a committee reviewing the bill to examine with adequate time whether we have that balance right, I will not be supporting this bill.

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