Billion Dollar Deal
Australia’s “Billion Dollar Deal” with Nauru to resettle members of the NZYQ cohort is reported to cost up to A$2.5 billion over 30 years, including an upfront payment of about A$408 million and ongoing annual contributions. Under this arrangement, Nauru will resettle members of the NZYQ cohort, which the Australian Government emphasises includes individuals whose visas were cancelled due to criminal or character issues and who are therefore no longer permitted to remain in Australia — even though many are recognised refugees.
Chain Refoulment
As a signatory to the 1951 Refugee Convention, Australia is legally required under Article 33 not to return refugees to countries where their life or freedom would be at risk. International law also protects refugees from being sent to a third country if that could put them at risk of persecution or serious harm — a situation known as “chain refoulement”. While Australia’s Migration Act includes protections against direct refoulement, it does not explicitly cover indirect or chain refoulement. Nonetheless, under international law, Australia could still be held responsible for chain refoulement.
Human rights advocates have raised this concern. According to a Nauruan language translation obtained by the Asylum Seeker Resource Centre, Nauru’s president has publicly said that some members of the NZYQ cohort could “go home,” meaning they might be returned to their countries of origin, potentially breaching Australia’s international obligations.
Bikie Gangs Contracts
Concerns about Australia’s Nauru resettlement arrangement have been raised following allegations of misuse of public funds and criminal infiltration — including the involvement of the Finks bikie gang in security contracts. These claims highlight serious questions about accountability and oversight in the offshore processing and Nauru resettlement system.
Procedural Fairness
Procedural fairness in relation to the NZYQ cohort
Following the government’s arrangement with Nauru to resettle members of the NZYQ cohort, several cohort members challenged the decision, arguing that the transfer had been arranged without affording them procedural fairness. In all the initial challenges, the Federal Court held that the Nauru arrangement was an exercise of the Commonwealth’s executive power in foreign affairs rather than a decision directed at individuals and therefore did not trigger any obligation to provide procedural fairness.
To prevent further legal challenges based on procedural fairness, the government passed amendments in September 2025 that removed any requirement to provide procedural fairness when arranging to send non-citizens to a third country.
The common law presumption of procedural fairness
At common law, there is a strong presumption that procedural fairness applies to the exercise of public power. As the High Court explained in Kioa v West (1985) 159 CLR 550, a decision that affects a person’s rights, interests, or legitimate expectations will ordinarily attract an obligation to afford procedural fairness, unless, as explained in Annetts v McCann (1990) 170 CLR 596, that obligation is excluded by clear statutory language. Silence is not sufficient to displace the presumption; exclusion must occur by “plain words of necessary intendment.”
It is against this doctrinal background that the September 2025 amendments must be understood. While the Federal Court rejected the NZYQ cohort’s initial challenges on the basis that the Nauru arrangement was an exercise of executive power in foreign affairs rather than a decision directed at individuals, the common law presumption of procedural fairness remained a potential basis for future litigation. The 2025 amendments therefore operate not merely to clarify the law, but to carve out the presumption itself by expressly excluding any obligation to provide procedural fairness when arranging the transfer of non-citizens to a third country.
Can procedural fairness be excluded absolutely?
While procedural fairness is not expressly entrenched in the Constitution, the assumption that it may be excluded in absolute terms warrants closer scrutiny. Parliamentary supremacy in Australia is not unfettered; the Commonwealth’s legislative power is conferred and delimited by the Constitution (see Australian Communist Party v Commonwealth (1951) 83 CLR 1), which operates within an inherited common law framework (see Engineers Case; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129). The Engineers Case confirms that the Constitution is interpreted as part of an existing legal system, not in isolation from it.
Against that background, there may be an argument that procedural fairness, as a foundational incident of lawful decision-making (Kioa v West), cannot be wholly extinguished where executive action directly affects individuals and is rendered effectively immune from judicial evaluation. Even if Parliament may limit or modify the content of procedural fairness, its complete exclusion raises questions about the constitutional boundaries of legislative power and the rule-of-law assumptions on which the Australian legal system rests.