In the final sitting week last year, the Government rushed three laws through Parliament¹, to give itself new powers to force people to cooperate with deportation, to enter into paid arrangements with third countries to accept people deported from Australia, and to limit people’s rights in immigration detention.  

On 26 August, the Government introduced a further Bill in the House of Representatives, to expand some of these new powers.²  

In summary, the Anti-fairness Bill aims to:  

• remove the Government’s duty to give a person notice, and an opportunity to respond, when deciding to deport them to a third country – effectively allowing the Government to ignore health, safety or family separation risks that someone might face if exiled permanently to a country that is not their home;   

• remove the Government’s duty to give a person notice when issuing them a direction to cooperate with their own deportation, when the failure to comply results in jail time; and  

• retrospectively patch up visa decisions that were made on the basis of wrong information and wrong or outdated law, rather than allowing those decisions to be reconsidered and made again.  

The Bill is the latest in an ongoing attempt by the Albanese government to deprive migrants and refugees of basic procedural rights that ensure integrity in decision-making, and to pre-empt or undermine decisions by our courts.  

Third Country Deportation Powers: Removing natural justice requirements 

The Deportation Laws passed last year allow the Government to pay any country to accept people Australia wants to deport. These paid agreements with third countries are called ‘third country reception arrangements.’³  

Third country reception arrangements can apply to anyone the Government wants to deport – the law is not limited to people released from immigration detention. Where third country reception arrangements are made in relation to Bridging R visa holders, the result is that their Bridging visa ceases and they must be taken back into immigration detention.₄

Earlier this year, the Government entered into a ‘third country reception arrangement’ with Nauru, allowing it to deport an initial group of three men to the country and potentially more in future.⁵ The Government provided the personal details of those men to the Government of Nauru, applied for 30-year visas on their behalf, and finalised the agreement with Nauru to deport them – all without notice to the men, whose lives will be changed forever by these decisions.  

The three men commenced individual challenges in the courts, including separate arguments that they should have been told about these important actions taken by the Government in making third country reception arrangements for them, and applying for Nauruan visas on their behalf. In one of those cases, an appeal in is working its way through the courts.₆ The Bill introduced to Parliament is intended to pre-empt that appeal, as well as other similar cases currently before the courts.  

If passed into law, the Bill would allow the Government to ignore and seek no input from the person on critical questions such as:  

• whether a person would face death, torture or persecution in the third country;  

• whether a person has a health condition and may face death or suffering in a third country if left without medical care; or 

• whether deportation to a third country would mean the person is confined to that country and would be permanently separated from their family.  

It would do this by removing any requirements of natural justice that might otherwise apply when the Government is entering into or carrying out a third country reception arrangement. Natural justice is what entitles people to receive fair notice and have a chance to respond when governments make decisions that impact them.  

Removing natural justice requirements in this context would mean the Government did not and does not have to consult or consider the specific circumstances of people subject to third country arrangement when taking actions that directly impact them, such as:  

• directly disclosing their personal details to third countries;₇

• negotiating or settling an agreement with a third country; or ⁸

• making an application for a visa on their behalf to enter a third country.⁹

The third country deportation powers do not just apply to people who have ‘exhausted all other options to remain in Australia,’¹⁰ as the Government claims. 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. The Federal Court recently overturned an unlawful decision the Administrative Review Tribunal had made in relation to one of these men, demonstrating the importance of appeal processes in our complex migration system.¹¹  

Removal Directions without notice  

The Deportation Laws introduced last year created a new power for the Government to issue ‘removal directions’¹² to compel people to cooperate with their own deportation, enforced by the threat of 12 months’ jail time.¹³

A ‘removal direction’ is a direction to do ‘a thing’ connected with removal from Australia.¹⁴ It could include, for example, a direction to apply for a passport, to attend a particular appointment, to buy a ticket, or to sign a document – but can really involve anything that an officer thinks may make it easier to deport someone.  

Removal directions are not just limited to the small group of people affected by NZYQ. They can be issued to a broad range of people, including:¹⁵ 

• people on Bridging R visas, released from indefinite immigration detention;  

• people on Bridging E visas, granted on the basis they are departing the country; and  

• people on other visas, as prescribed by the Government. 

If passed into law, the Bill would ensure that the rules of natural justice did not and do not apply to the issuing of a removal direction.¹⁶

Practically, that means that a Home Affairs officer would not have to notify a person that they intend to issue them with a formal removal direction, or give them an opportunity to comment on whether it is fair or practically possible to comply with such a direction. A removal direction is a serious escalation in the Department’s efforts to remove a person, and carries a criminal penalty for non-compliance – it is a much more significant step than informal discussions about departing Australia.  

It would mean, for example, that a mother could be issued with a removal direction requiring her to apply for a passport for her child, without the officer inquiring beforehand whether it was safe or even possible to contact the child’s father to obtain the consent required for the passport application. It would mean that an officer would not have to inquire beforehand about a person’s physical or mental capacity to comply with a removal direction. The burden would be shifted onto people subject to such directions to argue their circumstances after the fact, in the course of resisting a mandatory 12-month jail sentence. 

Retrospective validation of unlawful decisions  

All people are entitled to have serious legal decisions made about them on the basis of correct facts and law. This is a fundamental protection for all members of the Australian community. It is particularly essential for decisions to be correctly made when they involve serious and permanent consequences for people’s lives.  

However, the Bill seeks to validate previous visa decisions that have been rendered unlawful by the High Court’s ruling in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37.¹⁷

In NZYQ, the High Court ruled that it was unlawful and unconstitutional for the Government to hold people in indefinite immigration detention.  

Before that ruling, decision-makers when considering the consequences of their decisions would frequently assess and weigh the prospect that a person would be left in indefinite immigration detention if their visa was refused or cancelled. Decision-makers frequently weighed up this possibility when finely balancing the considerations for and against visa cancellation.  

Now, in light of NZYQ, it is clear those decisions were made using the wrong information and the outdated law.¹⁸ After NZYQ, the consequence of visa cancellation for a person who cannot be returned to their home country is not indefinite detention – but more likely temporary release into the community under highly restrictive conditions including nightly curfews and electronic monitoring, until a ‘third country reception arrangement’ can be made to permanently exile them.¹⁹

But rather than allowing these decisions to be recognised as wrong and corrected, with decision-makers weighing these grave new consequences in the balance, the Bill seeks to pre-empt legal challenges and retrospectively validate the decisions already made. This means that countless decisions that are now legally incorrect would remain in force, with no redress for the people and families affected.  

Where those wrongly made decisions meant a person lost their liberty, was forcibly removed from Australia, was charged with a crime, or had their private information disclosed by the Government, the Bill seeks to render those actions against a person lawful, despite the impact on their rights. For example, if someone was issued with a Bridging R Visa as a result of an earlier, erroneous decision to cancel their visa, and were subsequently charged for not complying with harsh visa conditions, they could still face jail time despite the fact that they should never have been placed on a BVR at all.   

The Bill seeks to absolve the Government of its errors and remove people’s rights retrospectively. It excludes migrants and refugees from the basic protection of law without any justification.  

Why does this matter?  

Through this legislation, the Government seeks unchecked power to make life-changing decisions that could see people permanently exiled to third countries, unencumbered by the usual requirements of fairness.   

It also seeks to undermine the impact of the High Court’s seminal decision about indefinite immigration detention, by refusing to acknowledge that previous decisions about people’s visas were wrong.   

The Bill is yet another step in the creation of a parallel legal system that subjects migrants and refugees to harsher treatment, purely on the basis of visa status. 

References and footnotes

1. https://www.hrlc.org.au/explainers/2024-11-8-deportation-surveillance/
2. Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025 (Cth).  
3. Migration Act 1958, s 198AHB(1).  
4. Migration Act 1958, s 76AAA. 
5. Relevant details of the arrangement with Nauru are set out in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 at [42]. 
6. The applicant in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 has appealed from this decision. The Government has recently sought to uplift this appeal to the High Court of Australia: Attorney-General of the Commonwealth v TCXM & Ors, S115/2025.   
7. ^198AAA(5A), ^501M.  
8. ^198AHAA(1).  
9. ^198AHAA(2). 
10. Explanatory Memorandum, Home Affairs Legislation Amendment (2025 Measures No. 1) Bill 2025, p 21.  
11. CDC25 v Minister for Immigration and Multicultural Affairs & Anor (VID 194/2025) – resolved by consent. 
12. Migration Act 1958, s 199B.  
13. Migration Act 1958, s 199E. 
14.  Migration Act 1958, s 199C(1).  
15. See definition of ‘removal pathway non-citizen’; Migration Act 1958, s 5(1). 
16. ^199C(9). 
17. ^ 12. 
18. AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 586; [2024] FCAFC 103 at [34]. 
19. DVRL v Minister for Immigration and Citizenship [2025] FCA 876 at [33].  

This explainer is not legal advice
This is a guide to provide general information only. It is not intended to be legal advice — seek legal advice if necessary.