Kate Chaney (Curtin, Independent) Share this | Link to 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.

Lisa Chesters (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

Is the motion seconded?

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

I second the motion, and I commend the member for Curtin in relation to this motion. It is a really important question, and it's incredibly disappointing to see how few members of this newly elected government are here to show interest in the types of laws that they are going to be putting their names to. This motion calls on the government to apply greater scrutiny to the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 to ensure that, in removing noncitizens who have committed crimes, we do not unfairly impede fundamental human rights.

In Warringah, we have a community that cares deeply about fairness and the rule of law. Over the last couple of days I've heard from many constituents—lawyers, advocates, families—who have raised serious concerns about the human rights impacts that will be raised by this bill. It's a serious responsibility of this parliament to consider where the balance lies between protecting our community and upholding our legal and moral obligations.

This bill was introduced with the intention of strengthening border security integrity and dealing with the difficulties arising from the High Court case—specifically, to ensure that people without a right to remain here, who have committed crimes within Australia, cannot remain here. That is a legitimate and important goal. Australia absolutely has the right and responsibility to manage its borders and to decide who can remain in the country. Our communities must feel safe and our laws must protect Australians. While this intention is sound, this bill has been introduced with limited explanation, limited consultation, little public discussion and little assessment of its unintended consequences and how broadly it will impact other visa categories. It has not been accompanied by the careful scrutiny and community engagement that legislation with such profound consequences deserves.

The Australian Human Rights Commission, Liberty Victoria and the Asylum Seeker Resource Centre—among others—have all raised deep concerns about this bill. It must be stated that these concerns are not with the principle that serious offenders should not remain in Australia—instead, the concerns are with how the bill proposes to achieve that aim by stripping away essential safeguards of procedural fairness and natural justice in our legal system. Procedural fairness is not a box-ticking exercise. It is a fundamental protection against error, injustice and abuse of power. It ensures that decisions are transparent, that they are evidence based, and that individuals have the right to be heard before life-changing decisions are made about them. When we weaken these principles we set a precedent that extends beyond any one group. What today is applied to noncitizens could tomorrow be normalised in other areas of law. In this case, there are grave concerns about the number of additional visa categories that will be impacted by this change.

We need a better balance to ensure that we contain our strong borders and domestic security while also making sure we have appropriate consequences for all those who commit serious crimes within Australia—there is no question about that. We also have to ensure that our processes are robust, fair and consistent with our obligations under international human rights law. This is where appropriate, independent oversight is crucial. Without it, we risk unchecked executive power. We also need more greater transparency of the memorandum of understanding signed by the minister and the Nauru government, to understand what the Australian public are now paying for. This bill should be carefully scrutinised by the Parliamentary Joint Committee for Human Rights. With this approach it will highlight the major concerns, ensure proper consideration of any amendments needed and reaffirm procedural safeguards.

I want to be really clear, especially for the new members of this Labor government who will be endorsing this legislation and who may not have taken the time to properly reflect on and consider what they are endorsing. This bill raises serious human rights concerns, and must be subjected to proper scrutiny. We must not lose sight of the fact that protecting our communities and upholding human rights are not opposing goals. They can and must be pursued together. I urge the government to engage with stakeholders, to listen to the concerns of experts and advocates, and to amend this bill and agree to this motion to have it referred to the human rights committee. We must ensure that any question of legislative and retrospectively eroding principles of procedural fairness and natural justice are carefully considered. These are cornerstones of our legal system, and setting them aside should be done with incredible caution.

Finally, I have a real fear that the concerns I have about this process and this bill around setting aside procedural fairness have undertones of the incredibly troubling process that is occurring in the US under their ICE division. The activities there of grabbing people and having them removed from the country without procedural fairness is incredibly troubling, and we all watched that on our screens with horror, thinking how could that possibly happen in Australia? But the risk is that this legislation before the House is the very first step of the path that the Albanese government is setting on. I commend the motion to the House and urge the government to support it.

Monique Ryan (Kooyong, Independent) Share this | Link to this | Hansard source

I rise to support the motion moved by the member for Curtin, and I do that because so many members of my Kooyong community have contacted the electorate office in the last week with their grave concerns around the precedent set by this piece of legislation. All of us care about community safety. Certainly, in Victoria, we've had a significant increase in the incidence of aggravated burglaries and home invasions in recent years. They cause fear and anxiety, and the reports that we've seen in the media regarding the activities of some of the cohort that this legislation is targeted at have raised considerable concern. All of us care about keeping Australians safe; all of us care about protecting our borders, and it's the government's job to do that. It's the government's job to ensure national security, to protect the nation, to enforce our laws and to manage our borders. But it's also the government's job to act as a democratic government, to deal fairly and justly with some of the most consequential decisions that a government can make—decisions about the deportation, detention and transfer of vulnerable individuals who lack the ability or the power to defend themselves.

We've seen, in relation to the NZYQ cohort and the way that the government has chosen to deal with it, a really concerning tendency to keep moving the goalposts when they don't suit the government. What we've seen is that the government is unhappy with the High Court rulings around it that its actions have previously been illegal. So what the government is seeking to do with this legislation is to retrospectively change the law, to move the goalposts and to remove the requirement for natural justice. That phrase in and of itself—removal of the requirement for natural justice, procedural fairness, for people who are noncitizens, when we would expect nothing less from our government for ourselves in that regard—is deeply concerning. What we're seeing with this government and this rushed legislation is a desire to remove noncitizens to a third-party country, one which is economically vulnerable and houses fewer than 11,000 citizens of its own, such that this cohort would constitute a significant percentage of the population of that country should they all be rehoused there, while implementing what is essentially a system of bullyboy tactics, where we're offering the government of Nauru huge sums of money to rehouse people because we simply can't deal with them domestically.

This legislation flies in the face of the values of our community; it flies in the face of the fundamentals of our legal system. So, before we enact something which could well prove to be just the very beginning of a pattern of governmental activities, the limits of which are not at this point clear, it makes perfect sense that we subject this legislation to further examination. As a member of the Parliamentary Joint Committee on Human Rights, I think that that committee should have the opportunity to examine this legislation. We owe nothing less to our own communities and to all of the vulnerable people in this country who could potentially fall under the limits of this sort of legislation in the future than to legislate it with justice and with the sort of patience that decisions of this magnitude deserve. So I ask the government to rethink its punitive, rushed attitude to this group of vulnerable people; to take very seriously the responsibility that comes with the supermajority that it has; to not bully the parliament in the same way that it proposes to bully these vulnerable people, this cohort of individuals who will have no ability to defend themselves before the law with the removal of such considerations as natural justice; and to treat them with the sort of respect that we, as citizens of this country, expect for ourselves.

Nicolette Boele (Bradfield, Independent) Share this | Link to this | Hansard source

I rise in support of the motion brought by the member for Curtin to refer the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 to the Parliamentary Joint Committee on Human Rights for inquiry and report. I watched with dismay in the last term of parliament when the Albanese government rushed through bill after bill limiting the rights of asylum seekers and visa holders in our communities. The measures they introduced included establishing mandatory visa cancellations for low-level offences, giving the government immunity from civil liabilities in connection with bridging visa cancellations and expanding powers to search and seize items in immigration detention centres without a warrant. Each time, there was some contraction of the usual parliamentary process to get the bills through quickly and quietly, whether it was failing to refer bills to relevant committees for review or gagging debate on the bills in this House. We're seeing it again here with this bill.

This bill may have significant ramifications for the people to which it applies. Combined with the measures passed last term to which I've already referred, this bill may be another step in that slow creep towards stripping away rights of asylum seekers in this country. These are people we have harmed by exposing them to the cruel and unusual offshore detention system we dreamed up in a shameful world-first—a system that the UK government toyed with copying from us but abandoned, because it was just too inhumane.

I agree with the Leader of the Opposition's statement that the bill is rushed. It's secretive and it's chaotic—this for a bill which explicitly confirms that people like these do not have a right to natural justice in administrative processes. This could result in them being involuntarily—read forcibly—removed from this country to a third country, with no ability to be heard in the courts about that occurring.

What we're really talking about here is a breakdown in processes and a reduction of democratic norms at two very significant levels: the individual rights level, around people's right to natural justice, and the parliamentary level, by the curtailing of opportunities for scrutiny and informed debate. It's for both of these reasons that I consider the member for Curtin's motion to be entirely reasonable. Referring a bill with such significant ramifications for people's basic rights to a committee for review is the absolute bare minimum level of scrutiny that government should permit.

The government won a big margin in the last election—94 seats in this House. They must not be tempted to exploit that position by abandoning basic tenets of our parliamentary and democratic processes. On the contrary, I strongly urge them to use their huge majority to be the leaders that our people have elected them to be.

Andrew Charlton (Parramatta, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

The government will not be supporting the referral of this bill to the Parliamentary Joint Committee on Human Rights. As a matter of course, the human rights committee considers all bills that are introduced to parliament as part of its normal scrutiny process. In its scrutiny reports, the committee may make minor comment on legislation, provide its assessment on an advice-only basis or seek a written response from the minister. The government does not support any referral to the committee beyond that.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the motion moved by the honourable member for Curtin be agreed to.