Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Regional Development) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

HOME AFFAIRS LEGISLATION AMENDMENT (2025 MEASURES NO. 1) BILL 2025

The Australian Government is committed to maintaining a migration system that is robust, effective and in the national interest.

Among other things, this means ensuring that where a person has no lawful basis to remain in Australia, our laws operate to facilitate their timely and lawful removal.

Procedural fairness

Procedural fairness is a fundamental principle in many areas of decision making. However, these provisions can and are being used by non- citizens to delay and frustrate their removal, at cost to the Commonwealth in circumstances where it is neither necessary nor appropriate for it to continue to apply.

The amendments in this Bill are largely' directed at non-citizens who have come to the end of any visa processes, and who are on a removal pathway.

This Bill makes targeted amendments of the Migration Act to expressly exclude procedural fairness from applying to the exercise of specific powers that deal with:

the taking of action in relation to third country reception arrangements;

the disclosure of information about removal pathway non-citizens or certain former removal pathway non-citizens to foreign governments; and

the issuing of removal pathway directions to removal pathway non- citizens to require them to take certain steps to facilitate their lawful removal from Australia.

These provisions are primarily directed to non-citizens who have exhausted all legitimate avenues to remain in Australia—and for whom removal is the only remaining outcome under Australian law.

In such cases, the purpose of the law should be clear: to give effect to removal as swiftly and effectively as possible.

Importantly, this Bill will make clear that any actions or things done in relation to third country reception arrangements are not conditioned on an obligation to afford procedural fairness to an affected person. The amendments in the Bill, and the associated validation provisions, reflect the law as it was declared by the Federal Court to be in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540—a case that the Government won.

In that case, the Federal Court held that entry into a third country reception arrangement and doing things for the purposes of that arrangement were not conditioned by the requirement to afford procedural fairness. The amendments in this Bill merely put that legal position beyond doubt, to reflect the intention when the third country reception arrangement provisions were introduced into the Migration Act in late 2024. These amendments will support the Government's efforts to resettle members of the NZYQ cohort.

Let me be clear-these amendments do not remove procedural fairness from the processes that support decisions whether to cancel or to refuse grant of a visa. Neither do they affect merits review.

These amendments are largely directed to the final steps in the removal process, where non-citizens who are on a removal pathway have had all claims to remain in Australia considered and rejected.

Validation of decisions

This Bill also responds to a recent decision of the Full Federal Court in AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs.

In AJN23, the Full Federal Court set aside a decision of the Minister to refuse the appellant's protection visa application, on the basis that the decision had been made on the understanding that refusal of the protection visa would result in the appellant remaining in detention indefinitely. That was the law as stated in AI-Kateb v Godwin, which the High Court overturned by its orders in NZYQ made on 8 November 2023.

Although the Minister's decision the subject of AJN23 was made before NZYQ, and reflected the law at the time the Minister's decision was made, the Court found that the Minister's decision was materially affected by an incorrect understanding of the law. This decision has created legal uncertainty for a range of decisions made by the Minister, the Minister's delegates and the former Administrative Appeals Tribunal, where the decision maker relied on the AI-Kateb understanding of the law.

The provisions in this Bill will validate relevant visa decisions so they are taken for all purposes to have always been valid—as if they had been made in accordance with the current law established by NZYQ.

These amendments do not seek to alter the current law on immigration detention, following the High Court's decision in NZYQ.

They ensure that past decisions—that is, relevant visa decisions made on or before 8 November 2023—are not invalidated on the narrow procedural ground identified in AJN23.

All individuals affected by these decisions will have already had full access to visa application processes, merits review, judicial review and ministerial intervention opportunities.

The Australian community rightly expects that our migration laws are upheld and that those with no legal right to remain in Australia will depart or be removed as soon as possible.

This Bill is an important step in ensuring that this expectation is met without unnecessary and avoidable delay.

I commend the Bill to the Chamber.

Debate adjourned.