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ANALYSIS: In its $2.5 billion deal to deport at least 280 people released from indefinite detention, the government shows its willingness to circumvent both the Constitution and human rights law. By Anna Talbot.
The NZYQ Nauru deportation deal
Home Affairs Minister Tony Burke last week finalised a deal to deport to Nauru people released from indefinite immigration detention following a 2023 High Court ruling. Australia would pay the tiny island nation $408 million to receive the so-called “NZYQ cohort”, plus $70 million a year for 30 years. Despite the vast sums involved, details are minimal, although departmental officials have said there are 354 members of the cohort, and it has been reported that Nauru will soon issue about 280 visas.
In NZYQ v Minister for Immigration, the High Court found that immigration detention was only constitutionally valid if there was a real chance a person could be deported in the reasonably foreseeable future. If not, they had to be released. Most of the cohort cannot be removed from Australia because they are refugees or stateless, meaning they have been found to be at risk of persecution, torture or other serious harm, or are not a citizen of any country.
The 2023 case was widely celebrated as a victory for humanity, because it overturned a decades-old policy of detaining non-citizens potentially forever. Since then, however, rapidly drafted laws have been repeatedly rushed through parliament, some of which have also been found to be unconstitutional. Now, it seems, most of the people who have been released from immigration detention are likely to be re-detained while they fight their removal to Nauru.
This week, the government hastened with even more draconian legislation, removing one of the only safeguards available to people who are at risk of removal: procedural fairness. Somehow, a government that prides itself on bringing back good, deliberative policy, whose leader once lauded the value of “sunlight” to ensure the quality of decision-making, has created some of the darkest corners in which human rights abuses can flourish.
Procedural fairness is a fundamental principle of law. It simply ensures that people who are affected by government decisions can clarify how they will be affected and that any mistakes can be corrected. Procedural fairness does not guarantee the government makes decisions people like, nor even that decisions are correct – it demands that the government follows a fair process and accounts for relevant information before a decision is made.
These safeguards are important. Two years ago, the robodebt royal commission revealed just how easy it is for governments to make the wrong decisions, and the severe, sometimes fatal ramifications that can follow.
The removal of procedural fairness will apply to decisions made to send people to Nauru under this new policy, as well as to those made in the past that may have been incorrect. It invites deep injustice. In a Senate committee hearing this week, Department of Home Affairs officials said the NZYQ cohort has had ample access to procedural fairness throughout their visa process. But the move to deport people to Nauru changes the basis on which those decisions were made. If a visa cancellation was confirmed based on laws before the latest Nauru deal became public, it was assumed the person would remain in Australia, either detained or in the community. The effects of those decisions could now be dramatically different.
Many people in this group are deeply connected to Australia. They have Australian families – children, partners, parents and siblings. The new law would mean that the government could completely ignore the effects of removal on the person’s Australian citizen children, or their dependent elderly or disabled relatives.
With this rushed legislation, the government is inviting unnecessary hardship. Decades ago, the Howard government detained an Australian resident and removed an Australian citizen in its fervour for harsh migration policies. This government now risks similarly disastrous mistakes. By excluding procedural fairness, for example, dependent children could end up being raised in state care.
Members of the NZYQ cohort have been through a lot. They might have fled their home country for fear of persecution, leaving behind all they know. Their journey could have compounded trauma. If they have been convicted of a crime in Australia – some have been but not all – they might have served prison sentences before being held indefinitely in immigration detention. In other words, they’ve already served their time. Following the NZYQ ruling, they might have been released under humiliating visa conditions, including having to wear bulky ankle monitors.
These experiences could have caused or contributed to serious illness. Mental healthcare in Nauru is extremely limited and there is no inpatient psychiatric hospital. Nauru’s ability to treat physical illness and provide reproductive healthcare is limited – abortion remains illegal in Nauru. In the recent case of TCXM v Minister for Immigration, the Federal Court of Australia held that Nauru could not treat the applicant’s potentially deadly illness. This did not, however, prevent his deportation to Nauru. Dozens of refugees who were held offshore have previously been brought to Australia following legal action to receive urgent, lifesaving care not available in Nauru. It is unlikely people sent under this new arrangement would be able to make similar claims, because the legal framework is different.
It is not just members of the NZYQ cohort and their families who are affected. Other people on insecure visas – including those who have previously suffered severe trauma in Nauru or Papua New Guinea under various offshore processing policies – will likely be terrified, along with their families, friends and networks. All of them urgently need lawyers to find out where they stand, but many will struggle to afford legal advice. While the government tells us the policy is restricted to the NZYQ cohort for now, the legislation is drafted broadly, and others could easily be caught in its net in the future.
Australia’s cruelty towards asylum seekers and refugees has been consistently condemned internationally. It violates fundamental human rights, and the new policy is set to expand this. Australia’s international human rights obligations extend to everyone in the community, regardless of their citizenship or migration status. Everyone has a right to life, to be free from cruel, inhuman or degrading treatment and from arbitrary detention. If Australia deports people against their will, it is obliged to ensure their rights will be respected by the receiving country. To do this, the circumstances of each individual must be assessed. There are no guarantees that the rights of people sent to Nauru under the latest agreement will be protected. As seen in TCXM v Minister for Immigration, people may be sent to Nauru under this policy even if their lives could be at risk as a result.
Under international law, everyone also has a right not to be sent to a place where they face persecution or a real risk of serious harm: the obligation of non-refoulement. The visa that Nauru has on offer for this cohort ostensibly prevents “chain refoulement”, that is, deportation to a third country that might then send the person to a place where they face persecution or other serious harm. There is a risk, however, that conditions become so dire that people will choose to return to a place where they are at risk. There is also no guarantee Nauru won’t change the rules.
The money involved clearly demonstrates the Australian government’s priorities. A total of about $2.5 billion for the latest deal, plus visa fees of $30,000 per person over the life of the visa. The annual payment of $70 million is more than the Australian Human Rights Commission budget, which in 2024/25 was $63 million. The government is spending more removing some 280 people to Nauru than on protecting the human rights of the 27 million who remain in Australia.
The experience of the asylum seekers Australia previously sent offshore offers a clear warning: many continue to suffer from the severe trauma they experienced there, including people who were children when they first sought Australia’s help. Those sent under this latest iteration of “offshoring” arguably face even worse circumstances: they will have access to 30-year visas, no clear pathway to citizenship, no travel documents and no commitment to find a permanent resettlement option for them. Yes, they will have work rights and access to education, but they may never be able to leave Nauru, a place the size of Melbourne Airport.
The impact on Nauru is also important. While Nauru is a sovereign country and makes choices in its own national interests, other countries in the Pacific will be taking note. The Albanese government has invested heavily in rebuilding relationships in the region. This policy makes it clear, however, that when it becomes politically expedient, Australia is willing to send its “problems” to small Pacific neighbours, with a big pay packet to sweeten the deal. The deal is reportedly being badly received by Nauruans. Independent MP Andrew Wilkie describes it as “a form of colonialism”.
The High Court of Australia has shown it is willing to hold the government to account for infringing constitutional protections. The government, however, continues to try to circumvent the Constitution, international human rights law and basic humanity by targeting those least able to withstand its assaults. The longer migration law mutates in the dark, the greater the monster the government creates.
This article was first published in the print edition of The Saturday Paper on September 6, 2025 as "‘A form of colonialism’".
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