Written by Julia Potts

Introduction

In September 2025, Australian Parliament passed the Home Affairs Legislation Amendment, an amendment to the Migration Act of 1958.¹ Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.). This legislation limits the natural justice requirement, the mandate of legal procedural fairness in Australia.²Id. It requires that a person facing government decision to have an opportunity to challenge it, be heard without bias, and have a determination made on the relevant evidence.³Justice Alan Robertson, Natural Justice or Procedural Fairness, Fed. Ct. of Austl. (Sep. 4, 2015), https://www.fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-robertson/robertson-j-20150904. The new legislation completely limits the application of the natural justice requirement when a person has a “third country reception arrangement” in place.⁴Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.). A third country reception arrangement is an arrangement “with a foreign country in relation to the removal of noncitizens from Australia and their acceptance, receipt or ongoing presence in the foreign country.”⁵Migration Amendment Bill 2024, 2024 (Act No. 105/2024) (Austl.). Put simply, now, when the Australian Government determines that a non-citizen should be sent to a third country (even one that the non-citizen has never been to or has any connection to), they have no legal right to challenge the decision.⁶See Explainer: The Anti-Fairness Bill: Entrenching Deportation Powers, Human Rights Law Centre (last visited Jan. 18, 2026), https://www.hrlc.org.au/explainers/explainer-the-anti-fairness-bill (describing how the new legislation does not require the government provide notice or an opportunity to respond to those subject to a third country removal decision).   

According to Article 26 of the International Covenant on Civil and Political Rights (ICCPR), “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”⁷International Covenant on Civil and Political Rights art. 26, Mar. 23, 1976, S. Exec. Doc. No. E 95-2 (1978), 999 U.N.T.S. 171 (1976). Situations that violate Article 26 include the denial of legal protections based on nation of origin or citizenship status.⁸ Id. This means a person has been stripped of legal remedies or protections typically afforded to individuals facing decisions by a state.⁹Id.  

The Home Affairs Legislation Amendment violates Article 26 of the ICCPR because it strips people subject to a third country reception arrangement of the opportunity to challenge the government decision to remove the individuals from Australia.  

Analysis 

An individual has been denied equal protection of the law if a government holds an individual from a particular group to a different standard than other individuals under its jurisdiction. A denial of equal protection is often applied based on an immutable characteristic, such as citizenship status.¹⁰See International Covenant on Civil and Political Rights art. 26, Mar. 23, 1976, S. Exec. Doc. No. E 95-2 (1978), 999 U.N.T.S. 171 (1976) (prohibiting the unequal application of laws and rights in party states).  

1. Whether a person is subject to a third country reception arrangement is at the discretion of the Australian Government. 

Article 26 of the ICCPR examines the actions of a government against people in its territory.¹¹Id.  In this case, the action in question (the limitation on the natural justice requirement) must be a government action to violate Article 26.  

The Home Affairs Legislation Amendment was passed by Parliament in September 2025.¹²Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.).  The contents of that legislation state that the natural justice requirement does not apply in situations where there is a third country reception arrangement in place.¹³ Id. The individuals subject to third country reception arrangements are only non-citizens,¹⁴ Id. specifically those who had their visas revoked at the discretion of the minister for immigration, or who have been denied visas entirely. As such, a third countryreception arrangement, and the individual removal decisions, are both government actions.¹⁵ See id. (authorizing the Australian Government to withhold the natural justice requirement in certain circumstances and referencing the Government’s ability to create third country reception arrangements).   

     2.   The limits on the natural justice requirement, remove legal protections normally afforded to all people facing a decision by the Australian Government. 

 The natural justice requirement protects individuals from arbitrary and biased decisions not based on the merits of evidence.¹⁶See Robertson, supra note 3 (explaining that the natural justice requirement demands that every person has a fair opportunity to challenge a government decision against them).  Individuals subject to a third country reception arrangement will not have the protection of the natural justice requirement, which would allow them to challenge the decision by the Australian Government.¹⁷See Explainer: The Anti-Fairness Bill: entrenching deportation powers, supra note 6 (stating that the Home Affairs Legislation Amendment removes a non-citizen’s ability to respond to a removal determination by the Australian Government).  The natural justice requirement, in any other situation where an individual faces a decision by the Australian Government, allows an individual to exercise the right to challenge a decision against them.¹⁸ Robertson, supra note 3.  The most recent legislation limiting the requirement is only targeting non-citizens who the Australian Government has determined are subject to removal to a third country pursuant to a third country reception arrangement.¹⁹Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.).  

Australia’s legislation specifically targets non-citizens that government officials determine are subject to removal to a third country.²⁰Id.  Australia’s denial of the natural justice requirement for non-citizens subject to a third country reception arrangement is a denial of natural justice under Australian law, and thereby a denial of equal protection of the law based on a discriminatory classification, constituting a violation of Article 26 of the ICCPR.²¹ See Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.) (applying limitations to the natural justice requirement only in third country reception arrangements, arrangements that affect non-citizens).  

Recommendations

Australian Parliament should repeal its legislation limiting the natural justice requirement for people subject to “third country reception arrangements” to comply with ICCPR Article 26. 

The legislation limiting the applicability of the natural justice requirement when third country reception arrangements are in place removes a legal protection in a context that would only affect non-citizens.²²See id. (referring only to the removal of non-citizens).  This apparent streamlining of deportation to third countries by removing the opportunity to challenge one’s removal contradicts Australia’s own enforcement of natural justice.²³See Robertson, supra note 3 (“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”)   

This legislation also presents the opportunity for abuse of power by the country’s minister for immigration.²⁴See Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.) (affording broad and exclusive powers to the minister for immigration regarding cancellation and denial of visas, which can result in an individual becoming subject to a third country reception arrangement).  The legislation, in effect, makes the right to challenge a government decision in a court of law discretionary.²⁵See id. How is a “right” really a “right” if it is at the discretion of a government official? A country at Australia’s level on the world stage sets a dangerous precedent with this legislation. Through the legislation only limits non-citizens’ access to the court in the situation of third country reception arrangements, it shows that Australia is willing to find creative ways subvert its international obligations with regard to treatment of non-citizens.²⁶See Home Affairs Legislation Amendment (2025 Measures No. 1) Act 2025, 2025 (Act No. 42/2025) (Austl.) (limiting the application of the natural justice requirement when an individual is subject to a third country reception arrangement); see also International Covenant on Civil and Political Rights art. 26, Mar. 23, 1976, S. Exec. Doc. No. E 95-2 (1978), 999 U.N.T.S. 171 (1976) (prohibiting the unequal application of laws and rights in party states).

Conclusion

Repealing the legislation limiting the natural justice requirement for these individuals would ensure that Australia is not holding certain non-citizens to an unequal standard of the law.²⁷ See Marina Sharpe, The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?, 30 Refuge: Canada’s J. on Refugees 5 (2014) (arguing that Article 26 of the ICCPR can be violated by the unequal application of domestic law).  This would not only help Australia comply with the ICCPR, but would reaffirm the importance and validity of the country’s domestic procedure of natural justice by ensuring that every individual subject to a decision by the Australian Government has an opportunity to challenge it.²⁸ See Robertson, supra note 3 (stating that the requirement of natural justice allows individuals to challenge decisions made against them by the Australia Government).