Legislation proposes some non-citizen removals to third countries
Lorraine Finlay, Australia’s human rights commissioner, said she was seriously concerned that legislation recently introduced in Parliament to amend the Migration Act 1958 (Cth) could permit the removal of certain non-citizens to third countries without ensuring procedural fairness.
“Procedural fairness is a cornerstone of our legal system and a safeguard against error,” Finlay said in a media release from the Australian Human Rights Commission (AHRC). “Expressly removing it from decisions about third country transfers risks serious harm and sets a troubling precedent.”
In the media release, Finlay warned that the changes contemplated via the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 could:
“These amendments strip away one of the most basic legal protections of a fair society: the right to be heard,” Finlay said in the media release.
Finlay added that the bill would validate relevant visa decisions retrospectively. According to Finlay, this change could entail retrospective criminal liability, significant concerns regarding the rule of law, and the need for careful scrutiny.
Finlay encouraged Parliament to examine the bill to ensure it would not undermine Australia’s human rights obligations.
“Fairness should never be optional,” Finlay said.
Finlay also urged Parliament to consider the contemplated changes in their broader context,
“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,” Finlay said.
In its media release, the AHRC noted that the planned amendments were part of the government’s response to recent High Court rulings, including NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023), 280 CLR 137; [2023] HCA 37.
NZYQ determined that indefinite immigration detention – where there was no real prospect of a detainee’s removal from Australia becoming practicable within the reasonably foreseeable future – was unconstitutional.
NZYQ resulted in the release from immigration detention of hundreds of detainees whom the relevant authorities could not deport to their country of origin, as well as legislative changes permitting the government to pay third countries to accept non-citizens under third country reception arrangements.
According to the bill’s explanatory memoranda on Parliament’s website, the proposed changes would provide that the rules of natural justice would be inapplicable to third country reception arrangements. Specifically, the rules would not apply to the Commonwealth’s exercise of executive power to:
