'Albanese's Deportation Proposal Sparks Serious Concerns'

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The government has put forward legislation aimed at allowing the bypassing of procedural fairness for non-citizens slated for removal to third countries.

Human rights organizations issued a collective statement on Thursday objecting to the bill introduced by Home Affairs Minister Tony Burke earlier in the week.

The bill proposes changes that would halt the application of natural justice rules for decisions involving “third country reception arrangements” in Australia. This means the government would no longer have to provide a fair hearing or take individual circumstances into account when deporting non-citizens to these countries.

However, these changes would not affect the right to procedural fairness concerning decisions about visa cancellations or refusals.

Burke stated on Tuesday: “Procedural fairness is crucial in many areas of decision-making; nonetheless, these measures are sometimes exploited by non-citizens to delay their removal at a cost to the Commonwealth, when it is not necessary or suitable for them to remain applicable.”

“These provisions are primarily directed to non-citizens who have exhausted all legitimate avenues to remain in Australia and for whom removal is the only remaining outcome under Australian law,” Burke said.

Australia is looking to resettle three people in Nauru who were released as a result of the landmark “NZYQ” High Court decision, but their removal has been stalled since February due to ongoing court challenges.

Concerns for legal rights

Burke said the purpose of the law should be clear “to give effect to removal as swiftly and effectively as possible”.

“All individuals affected by these decisions will have already had full access to visa application processes, merits review, judicial review, and ministerial intervention opportunities,” he said.

Sanmati Verma, legal director at the Human Rights Law Centre, told SBS News there are serious concerns about how the new powers could operate in practice.

“It would deprive people of fair notice and a fair opportunity to make their case before they are deported to a third country under the government’s new powers,” she said.

“This would strip people of the opportunity to respond before receiving a deportation notice, risking imprisonment if they do not comply.”

Verma said removing procedural fairness means people could be essentially “banished” to another country without their individual circumstances being taken into account.

“What is their health situation? Are they owed protection? Are they going to be harmed in that other country? Do their personal circumstances mean that, once they are sent to a third country, they will never be able to leave? Will they ever practically be able to reunite with their family again?” she questioned.

“These are the sort of basic human questions that the government should have to ask before exercising these powers.”

Verma said an example of a critical misunderstanding relates to the three men set to be sent to Nauru, where the government “misunderstood certain critical health details in relation to some of these men and misunderstood the nationality of one of them”.

Sarah Dale, centre director and principal solicitor at the Refugee Advice and Casework Service, told SBS News another element of the proposal is around retrospective criminality, which has the potential to criminalise something that was not a criminal activity at the time.

“We are still trying to comprehend the specific implications of this legislation, but the retrospective aspect should be a grave concern for all lawyers across Australia,” she commented.

“We were assisting one man who had been issued with this removal notice to Nauru, and the courts determined that his previous legal proceedings were flawed, that he had not been afforded due process, and thus that affected his ability to be removed to Nauru,” Dale said.

“The fact that the government is looking to legislate around these court decisions is incredibly alarming.”

Legislation ‘secretive’ and ‘extremely dangerous’

Jana Favero, the deputy CEO at the Asylum Seeker Resource Centre, said the legislation sets an “dangerous precedent”.

“We know that there are times when mistakes are made. We know that there are times when there have been delays in procedural fairness where there have been errors, either bureaucratic or in courts,” she told SBS News.

“Everyone should have the right to absolutely exhaust all their legal avenues.”

Favero alleged the proposed changes followed a pattern of the Albanese government targeting the rights of vulnerable people in Australia.

“It cannot be viewed in isolation. It needs to be considered alongside three harsh bills Labor passed late last year, which collectively form a network that restricts access to legal justice and human rights protections for people in our community,” she added.

Last year, the government enacted laws granting immigration officials greater authority to carry out deportations, including the ability to financially compensate other countries for accepting non-citizens from Australia.

‘This is not the way’

Opposition leader Sussan Ley has described the bill as “rushed, secretive and chaotic”, saying the Coalition was only briefed about the bill on the day it was introduced.

“This is not the way that the prime minister and his ministers should conduct policy around critical issues of national security,” she said at a press conference on Tuesday.

SBS News has contacted the Department of Home Affairs for comment.