The Albanese government does not have a “legitimate objective” in denying fair hearings to those set to be deported to Nauru and could place Australia in breach of international human rights obligations, a Labor-chaired committee has found.
The joint human rights committee’s scrutiny of the law said the changes would “likely exacerbate the underlying human rights concerns” with the regime to off-load more than 350 NZYQ-affected noncitizens to Nauru as part of a $2.5bn deal.
The law, which passed in early September, amended the Migration Act to remove natural justice – access to a fair hearing and to a decision without bias – for noncitizens on a removal pathway.
Sign up: AU Breaking News email
It also validates government visa decisions made before the high court’s NZYQ ruling in November 2023 that could subsequently have been deemed unlawful.
The changes aim to speed up deportations by removing the cohort’s right to natural justice – and therefore further legal challenges – once the government decides to send them to Nauru, by preventing any legal “delay or uncertainty”.
But the committee’s report, released last Thursday, criticised the government’s justification.
It found the government did not provide legitimate reasons to deny due process to the cohort, saying it is “not clear why the measure is necessary”.
Under a UN article, of which Australia is party to, noncitizens have the right to submit reasons against their deportation except where “compelling reasons of national security otherwise require”.
“Administrative convenience, in and of itself, is unlikely to be sufficient to constitute a legitimate objective for the purposes of international human rights law,” the committee said in the report.
“The committee considers that ensuring that removal and third country reception processes are not subject to ‘delay or uncertainty’ is not a legitimate objective for the purposes of international human rights law.”
When introducing the bill, the home affairs minister, Tony Burke, argued procedural fairness was being abused by the cohort to “delay and frustrate their removal at cost to the commonwealth in circumstances where it is neither necessary nor appropriate for it to continue”.
In February, it is understood one of the noncitizens – an Iraqi man in his 60s – was told he had been granted a 30-year visa for Nauru and immediately detained when Australian Border Force showed up at his door at 11pm at night. He had been in the community after being freed from indefinite detention after the NZYQ ruling.
after newsletter promotion
The high court ruled to uphold the Albanese government’s decision to cancel his protection visa last month. The man remains in detention while awaiting further legal challenges about due process.
The government’s changes apply retrospectively and could impact the court’s decision on whether the man was owed natural justice, which would include providing him with awareness that the government had applied for a Nauruan visa on his behalf.
The committee’s report said it the government’s decision to make the laws retrospective amid an ongoing court case could pose “an impermissible interference with the independence and impartiality of the judiciary”.
It also raised concerns Australia did not have sufficient safeguards to ensure those sent to Nauru would not face exposure to “ill-treatment or torture” or a risk they could be sent to their origin of country, where they could face potential persecution.
Under the changes made last month, a noncitizen designated for Nauru can appeal for ministerial intervention in their case.
