Up to 80,000 people in Australia may be affected by the Albanese government’s proposed powers to strip basic legal protections from the noncitizens it plans to deport to Nauru, refugee lawyers warn.
The proposed federal powers, revealed last Wednesday, are expected to pass parliament this week with the Coalition’s support at a snap two-hour committee hearing scheduled for Wednesday night.
The home affairs bill will deny natural justice to noncitizens on a removal pathway, as well as legally validate all of the government’s visa decisions made before the high court’s NZYQ ruling in November 2023 that may now be considered unlawful.
It comes as the home affairs minister, Tony Burke, struck a $400m deal last week with Nauru to offload hundreds of noncitizens to the tiny Pacific nation, though the details of the arrangement remain a secret.
The Refugee Legal executive director, David Manne, said the bill’s broad scope to apply to tens of thousands of people within Australia was an “extreme overreach” and like taking a “sledgehammer to a walnut”.
“It strikes at the heart of fundamental protections under Australian law, our international obligations, and the values which underpin them: humanity, compassion, fairness and justice,” he said.
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The country’s peak legal body, the Law Council of Australia, has also raised its concerns about the level of scrutiny the bill will receive before its expected passing, and whether the prospect of it applying retrospectively is against the rule of law.
The Labor government passed three bills in November 2024 allowing Australia to enter into financial arrangements with third countries to remove noncitizens without a valid visa.
The government’s proposed legislation aims to speed up that process by removing the cohort’s right to natural justice, which is defined as a fair hearing and to a decision without bias.
The NZYQ group consists of about 280 noncitizens whose visas had been cancelled on character grounds, and who were released from indefinite detention in November 2023 into the community after a high court decision.
Legal experts warn the rules could be applied too broadly, covering thousands more within Australia, who fall under the category of a noncitizen without a valid visa.
Home affairs department officials told a parliamentary hearing last November the cohort of those without a valid visa at the time stood at more than 75,000 while a further 4,500 were on bridging visa E.
Those in community and immigration detention make up a smaller group at more than 1,000.
The Greens senator David Shoebridge said the proposal showed the Albanese government were either “completely unaware or uncaring of the fact that this will undermine the entire legal system”.
“The government desperately wants to avoid oversight because these changes are just so toxic,” he said. “Minister Burke is running around doing his Peter Dutton impression, dog-whistling and punching down on migrants.”
Burke said he was not sure whether to describe Shoebridge’s criticism “as melodramatic or just plain wrong”.
“Saying that people who have their visas cancelled should leave the country is hardly new.”
Burke did not respond to questions about the bill’s reach beyond those in the NZYQ cohort.
The Human Rights Law Centre associate legal director, Josephine Langbien, said the bill proposed to strip an “essentially unlimited number of migrants and refugees of fundamental legal rights and safeguards”.
“The government is simply asking us to trust their judgment about how these powers will be used. But it is critical that all people have a fair chance to be heard, particularly in decisions about matters of life and death,” she said.
Jana Favero, ASRC’s deputy chief executive, said the government had been “blatantly misleading the public” about the bill’s reach, as well as its power to prevent appeals and to be tweaked without parliamentary approval.
“By removing the most basic legal protections from these decisions, Labor is setting Australia on a dangerous and slippery slope,” she said.
On Tuesday, teal and Greens MPs spoke against the bill, warning they were only given a 10-minute briefing last week about the proposed changes.
The Law Council of Australia has also raised concerns about the bill’s timing and lack of scrutiny, its removal of natural justice and its retrospectivity to visa decisions prior to the NZYQ ruling, which it said appeared to be “contrary to the rule of law”.
“The Law Council is concerned by the lack of advance public consultation on this bill. To our knowledge, it has been introduced to parliament without any prior consultation with any interested party,” the council’s president, Juliana Warner, said.
“Even if legislation is considered necessary, it should be prospective and not retrospective in nature.”
The Immigration Advice and Rights Centre boss, Joshua Strutt, said the changes set a “dangerous precedent” and should concern all Australians.
Burke announced in February Nauru had agreed to offer 30-year resettlement visas for three men within the NZYQ cohort prompting their deportation. The three men still remain in Australia having lodged a series of appeals against their removal.
The high court is expected to rule on Wednesday whether the government’s decision to cancel one of the men’s protection visas was made unlawfully.
