This opinion piece by Human Rights Commissioner Lorraine Finlay appeared in The Canberra Times on 1 September 2025
Australia has every right - indeed, a responsibility - to manage its borders and make decisions about who can stay in the country.
That includes removing non-citizens who have gone through all the proper legal processes and no longer have a right to remain.
But how we do this matters, because even when someone has reached the end of the road legally, they're still a person. And every person deserves to be treated fairly.
The Government's newly announced $400 million agreement with Nauru - which will facilitate the deportation of potentially hundreds of detainees from the NZYQ cohort - brings these concerns into sharp focus. While the Government claims this agreement contains undertakings to ensure proper treatment, no specific details have been provided and proposed amendments to the Migration Act introduced into Parliament earlier this week are specifically designed to remove existing safeguards.
The Home Affairs Legislation Amendment (2025 Measures No. 1) Bill specifically excludes procedural fairness from applying when the Government is exercising specific powers to remove non-citizens (including refugees) to a third country.
Supporters of the amendments argue that these individuals have already had their day in court - that they've been through visa processes, appeals, and judicial review.
And this may be true in most cases. But procedural fairness isn't just about ticking legal boxes. It's about making sure that decisions are made carefully, transparently, and with respect for the individual. It's a safeguard against error, and a check on power.
Without it, we risk getting things wrong. And when deportation is involved, getting it wrong can have devastating consequences.
Stripping away these safeguards means turning a blind eye to the real human cost, where lives, health, and families hang in the balance.
One of the biggest concerns here is chain refoulement: where someone is sent to a third country that then sends them on to a place where they could face serious harm.
Australia has international obligations that require the Government to prevent this. If passed, these amendments will make it harder to meet those obligations.
The Australian Government must be able to remove non-citizens who have gone through all the proper legal channels and no longer have a right to stay. That's not in dispute.
However, these amendments are expressly designed to strip away one of the most basic protections we have in a fair society: the right to be heard.
Under these amendments, the government could deport someone to a third country - one that has agreed to accept them - without giving that person a meaningful opportunity to respond to that decision.
Stripping away procedural fairness with respect to this specific decision means there's no chance to correct factual errors or share new information that could be critical to ensuring the decision is fair and safe.
Fairness isn't something that can be selectively applied - it's a principle that should guide every stage of decision-making, especially when the consequences involve a person's safety and future.
The bill doesn't just remove procedural fairness. It also includes measures that operate to retrospectively validate relevant visa decisions and any consequence flowing from them, which may give rise to retrospective criminal liability. This raises rule of law concerns, and needs to be given rigorous scrutiny.
Further, while these amendments are said to be 'primarily directed to noncitizens who have exhausted all legitimate avenues to remain in Australia', they appear to have a broader reach.
The Human Rights Law Centre has already confirmed that 'two of the three people initially targeted by the Government for deportation to Nauru had not yet completed all appeal options relating to their visas'.
These proposed amendments also need to be seen in their broader context as they continue a worrying trend.
Over the past 18 months, we've seen a series of rushed, reactive laws in response to court decisions, like the High Court's ruling in the NZYQ case, which found indefinite immigration detention unlawful.
Instead of using that moment to rethink and improve our migration system, we've seen a patchwork of attempted quick fixes: ankle bracelets, curfews, re-detention powers and now this.
Put together, these measures paint a picture of a system being built on the run.
Immigration and asylum policies need to be carefully thought through as there are lots of important factors to balance
These include: maintaining the integrity of Australia's migration system; the need to protect people fleeing danger and ensure their human rights are respected; and protecting the human rights of the broader Australian community.
These are complex issues that require careful consideration - not quick fixes or rushed decisions.
We can do better. We can protect the integrity of our migration system without abandoning the values that underpin it. That means making sure decisions are fair, that people are treated with dignity, and that we don't sacrifice human rights for the sake of convenience.
Australia has the tools to manage migration responsibly. What we need is the will to use them wisely, and to remember that even in the toughest cases, fairness should never be optional.
