Helen Haines (Indi, Independent) Share this | Hansard source

I rise today to speak on the Home Affairs Legislation Amendment (2025 Measures No.1) Bill 2025. This bill is the latest in a long chain of legislation to the House in response to the NZYQ cohort decision made in November 2023. What this bill does, effectively, is to: (1) remove the right to procedural fairness for persons subject to removal to a third country, and (2) retrospectively validate relevant visa decisions made prior to the NZYQ case. I, along with human rights groups and the country's leading legal bodies, have serious concerns with this bill, on multiple fronts, which I will outline here.

In November 2023, the High Court overturned the Al-Kateb ruling, which had permitted indefinite detention. The court found that there was no real prospect of the removal of a detainee from Australia becoming practicable in the reasonably foreseeable future. It was unconstitutional. There are now over 300 noncitizens from the NZYQ cohort in the Australian community on bridging visas. Many of this cohort do not belong in Australia, and I acknowledge their legal status is a wicked problem.

With no legal right to remain in Australia and the government unable to detain them or return them to their country of origin, clearly, there is no simple solution. But a wicked problem does not justify a wicked solution. We must remember the old legal adage, 'Hard cases make bad law.' An extreme case is a poor basis for a general law that would cover a wider range of less extreme cases.

The bill before the House will remove a bedrock of our rule of law. It seeks to remove the rules of natural justice and procedural fairness, when trying to remove people from Australia and send them to Nauru or other undisclosed third countries. In the last parliament, in response to the NZYQ decision, the government rushed through legislation, with the support of the opposition, that meant any person released from indefinite detention must be subject to ankle bracelets and a curfew. I opposed this legislation at the time, in part, because I had concerns that it would not withstand a High Court challenge. It turns out I was right to be concerned, because the High Court then considered the case of YBFZ, an Iranian person released following the NZYQ decision who was subject to these restrictive curfew and ankle bracelet conditions. Like it found in the NZYQ case, the High Court ruled that in the case of YBFZ the government was, again, breaching constitutional principles of the separation of powers by imposing punishment on individuals when this is solely within the remit of the courts. This bill before us today is also likely to be subject to a High Court challenge, with a reasonable chance it too will be overturned. On that basis alone, I cannot support this bill.

We must remember that every High Court challenge to government legislation costs a significant amount of taxpayer dollars and uses valuable court time. I must be able to satisfy myself that the legislation I'm voting on has been protected as much as possible from this occurring. Right now, I cannot assure myself nor the people I represent that this is the case. It's not just for this reason alone that I will be opposing this bill. I am deeply concerned about the speed in which this government seeks to rush through this legislation and the lack of transparency around it.

When I'm deciding whether to support or oppose a bill, I ask a fundamental question: is this good governance? Good governance means good process. It means proper time for scrutiny, proper time for consultation and proper time for negotiation. This bill was only introduced last week, with a 10-minute briefing provided to the crossbench. It has not gone through a Senate inquiry nor the opportunity for scrutiny by legal experts who can determine its potential impacts beyond those in the NZYQ cohort.

I need to know what the impacts are that of the bill I'm required to vote on, and I cannot support a bill where the government has not allowed adequate scrutiny for me to understand and have confidence in this legislation. My crossbench colleague the member for Curtin moved a motion for this scrutiny yesterday—a motion that was voted down by all but the crossbench.

Then there is the content of this bill, which undermines vital principles of our legal system and the rule of law in this country. That is important. The decision to remove a person to another country is fundamentally distinct from the decision to approve, revoke or refuse the visa to be in Australia. This bill does not just have consequence for the NZYQ cohort but for others, and it could result in people subject to remove to a third country having no legal rights to be heard. This, according to the Refugee Council of Australia, means there would be no consideration of whether a person faces a real risk of persecution or harm if sent to Nauru or indeed any other country. There would be no consideration of whether they would receive adequate health care in the third country, for example.

While the government says that these people have already 'had their day in court', the decision to forcibly remove them to another country should not be brushed aside and has broader consequences, which this parliament is being given no opportunity to scrutinise. Refugee law experts say that this bill poses a real risk of chain refoulement, which means there is nothing preventing Nauru or other undisclosed third countries from sending people back to harm, persecution or death in their countries of origin. This would be a breach of Australia's international law obligations, a risk the Department of Home Affairs themselves have acknowledged. The simple fact is that Australia has legal obligations to ensure these people won't be returned to face persecution or death. It's absolutely not clear to me as a parliamentarian that the government can guarantee this. I have deep concerns about that.

The removal of due process would mean, if someone were wrongly sent to Nauru, including those who have not been convicted of any offence, they would have no way to challenge their removal. Just think about that for a moment—no way to be heard in court. No justice. It's a big decision we're making here. Legal bodies, such as the Law Council of Australia, also have serious concerns about the retrospective measures proposed in this bill. The Human Rights Commissioner said that the bill 'may give rise to retrospective criminal liability'. She continues:

This raises significant concerns about the rule of law and requires careful scrutiny.

The Asylum Seeker Resource Centre says the bill would validate 'incorrect decisions that were made in the past, preventing the right for these decisions to be corrected'. It continues:

The Bill even allows the government to continue to prosecute criminal charges that were brought as a result of incorrect decisions.

Surely, colleagues, this cannot be the standard of legislating we hold ourselves to in this place—is it?

When the government introduced another bill last year relating to the NZYQ cohort, I said:

… under the bill the government can now pay countries to take people they're deported to. This could create a very real risk of a new offshore warehousing program. If the Australian public want to know how much the government is spending to do this, that will only be revealed by freedom-of-information requests or Senate estimates hearings.

At the time, I said:

I've got real concerns about ensuring the transparency of such a use of taxpayer money.

Well, here we are. We now know two things. Firstly, the government is creating a new offshore warehousing regime. Secondly, it's going to cost $400 million upfront and $70 million per year after that.

The Human Rights Law Centre has gone on to say that the legislation would save the government from having to even ask basic questions in relation to the people it's looking to deport to third countries forever. The Human Rights Commission has said that the bill 'raises significant concerns about the rule of law'. It said:

Rather than a patchwork of reactive responses, we need to ensure principled migration and asylum policies that maintain the integrity of Australia's migration system while also upholding our human rights obligations.

That sounds reasonable. The Asylum Seeker Resource Centre is concerned that the bill is drafted so broadly that its removal of fair process could apply not only to the NZYQ cohort but also to anyone on a bridging visa issued on departure grounds, potentially thousands of people. Already they've told me about being contacted by people with no connection to the NZYQ cohort, terrified that this bill's removal of due process could in fact apply to them. And what reassurance can we give them?

Since this bill was introduced, many of my constituents have already phoned and emailed my office, one just a few minutes ago, urging me to oppose it. The rule of law either applies to us all or doesn't. We've said so many times in this place that in our country no-one is above the law. Well, this bill should remind us that no-one should be beneath the law. I urge the Senate to send this bill to a full inquiry for adequate scrutiny so that we can understand the full impact of these proposed laws. Until such a time, in its current form, I will not support this bill.

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