A Senate committee with a Labor majority has expressed concerns about new legislation that eliminates the requirement for procedural fairness for non-citizens facing deportation to Nauru. This report was released shortly after the legislation passed through parliament.

Last week, Labor expedited the bill to enhance its authority to deport up to 354 individuals from the NZYQ cohort to Nauru, as part of a potentially multi-billion-dollar agreement signed last month. The new laws mean that the principles of natural justice, which ensure a fair hearing for those affected by government decisions, will not apply in cases involving “third country reception arrangements.” This change will also apply retroactively, affecting three men currently challenging their deportation in court.

The deal with Nauru is projected to cost Australia approximately $2.5 billion over 30 years. Government officials have confirmed that multi-million-dollar payments will continue for three decades if the agreement remains in effect. However, the committee responsible for evaluating legislation against individual rights and parliamentary standards stated that the government did not adequately justify its decision to exclude natural justice rules or its retrospective application.

Home Affairs Minister Tony Burke has previously claimed that the laws reflect a court ruling from earlier this year, which indicated that entering into a third-country reception arrangement does not require procedural fairness for those affected. Nonetheless, the committee emphasized that natural justice is a fundamental principle of common law, which includes the right to a fair hearing and a prohibition against bias in decision-making.

The report raised questions about whether the justifications provided in the court ruling addressed the bias rule. It stated, "the exclusion of the rule against bias is not a step to be taken lightly," and noted that the explanatory materials did not justify its removal concerning the bill's provisions that exclude all rules of natural justice.

The committee also highlighted that the retrospective nature of the laws raised additional concerns, stating that such changes require a compelling justification. The report noted, "To the extent that authorisation for actions which affect individual rights or obligations is provided retrospectively, the claim that those who govern (along with the governed) are bound by the law is weakened."

The committee urged the minister to clarify several issues, including the necessity of excluding natural justice entirely, the rationale for denying the fair hearing rule to those impacted, and the appropriateness of retrospectively validating the exercise of powers related to third-country reception arrangements.

Despite the committee's concerns, a quick three-hour Senate hearing on the bill was held, which did not accept formal submissions and only allowed questioning of departmental officials. No government politicians have publicly voiced concerns about the legislation, which has faced strong criticism from the Greens and human rights advocates.

David Shoebridge, the Greens' immigration spokesperson, stated that the report "highlights a few of the many issues with Labor's latest attack that were raised with me by lawyers, advocates, and the refugee sector." He added that releasing the report after the bill's passage reflects the Albanese government's disregard for the concerns raised.

Minister Burke has argued that the laws are necessary to prevent non-citizens from using procedural fairness provisions to delay their removal from Australia, asserting that they primarily affect individuals who have exhausted all legitimate avenues to remain in the country. The NZYQ cohort was released from Australian immigration detention following a landmark High Court ruling in 2023, which deemed it unlawful to hold individuals indefinitely without reasonable prospects of removal. Many members of this group have a history of violent offenses but have completed their sentences.

Departmental officials disclosed during a Senate hearing last week that Australia is set to pay Nauru around $2.5 billion over 30 years to resettle the former detainees. Minister Burke has been approached for further comment.